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LTC 205-2022 Federal Court Litigation Victories (with attachments)(final)204-2022 MIAM I BEACH OFFICE OF THE C ITY ATTORNEY LTC No. ______ _ LETTER TO COMMISSION TO: Mayor Dan Gelber and Members of the City Commission FROM: DATE: Rafael A. Paz, City Attorney ~ May 26, 2022 SUBJECT: Federal Court Victories in Saint-Vil v. City of Miami Beach, et al and Jamie Senko v. Corey Jackson, et al. The purpose of this L TC is to advise you of the City's recent victories in two federal court decisions in the Southern District of Florida . The lawsuits arose from interactions between the Plaintiffs and Miami Beach Police Department Officers. Both suits alleged the City had violated the Plaintiffs' constitutional rights by allegedly falsely arresting the Plaintiffs and allegedly using excessive force . However, both courts rejected the claims as a matter of law and ruled in favor of the City in both cases. In Saint Vil , United States District Court Judge Robert Scola granted the City's Motion for Summary Judgment and dismissed Plaintiff's three counts against the City as a matter of law. In Senko, United States District Court Judge Raag Singha! granted the City's Motion for Summary Judgment and dismissed Plaintiff's seven-count Complaint as a matter of law. These were hard-fought victories that were aggressively litigated by Plaintiffs' counsel over the course of approximately three years. Both cases were litigated on behalf of the City by lead counsel Chief Deputy City Attorney Robert Rosenwald and Assistant City Attorney Benjamin Braun. A copy of the orders in Saint-Vil, v. City of Miami Beach & Augustin Rodriguez, No. 19 24640-CIV, 2022 WL 1591492 (S.D. Fla. May 19, 2022) and Senko v. Corey Jackson, et al, Case No. 20-cv-61845 (S.D. Fla. 2022) are attached . As always, feel free to contact me or Chief Deputy City Attorney Rob Rosenwald for further information about this or any other City litigation matter. RAP/RFR/bb Ronald M. Saint-Vil, Plaintiff, v. City of Miami Beach and..., Slip Copy (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 1 2022 WL 1591492 Only the Westlaw citation is currently available. United States District Court, S.D. Florida. Ronald M. Saint-Vil, Plaintiff, v. City of Miami Beach and Augustin Rodriguez, Defendants. Civil Action No. 19-24640-Civ-Scola | Entered on FLSD Docket 05/19/2022 Order on the Parties’ Motions to Strike and Summary Judgment Robert N. Scola, Jr. United States District Judge *1 Ronald Saint-Vil sues the City of Miami Beach (“City”) and Officer Augustin Rodriguez on several claims arising out of events that transpired on a night in November 2017. The City and Officer Rodriguez separately moved for summary judgment. For the reasons below, the Court grants the City's motion (ECF No. 132) in full and partially grants Officer Rodriguez's (ECF No. 134). But before addressing the merits, the Court takes up a housekeeping matter. After briefing on the summary judgment motions closed, the Defendants filed a notice of supplemental authority based on the deposition of Richard Masten—Mr. Saint-Vil's proffered expert. Mr. Saint-Vil moved to strike the transcript as being filed prematurely (ECF No. 167), and in the alternative asked that the Court consider the transcript in conjunction with Mr. Masten's errata sheet. (ECF No. 171.) The Defendants, in turn, asked the Court to strike the errata sheet on the ground that it contains substantive changes that contradict Mr. Masten's deposition testimony. (ECF No. 172.) Although courts may disregard changes in an errata sheet that contradict a deponent's testimony, Jacobs v. Chadbourne, 733 F. App'x. 483, 486 (11th Cir. 2018), the Court denies both motions as moot (ECF Nos. 167 and 172) because the Court did not rely upon the contested portions of Mr. Masten's deposition transcript on summary judgment. Both the transcript and the errata sheet remain on the record. The Court's ruling on summary judgment follows. 1. Background Mr. Saint-Vil is an African American man in his mid-forties. On the night of November 10, 2017, he was working a charity event at the SLS Hotel in Miami Beach, which ended no more than an hour after midnight. While Mr. Saint-Vil and his wife were pulling out of the parking lot to head home, his wife realized that she left her bag at the hotel. Mr. Saint-Vil dropped her off at the front entrance and told her he would pick her up at the side entrance. While he waited, Mr. Saint-Vil encountered two City police officers who were processing a detainee for trespassing on the beach after-hours. Mr. Saint-Vil decided to record what he saw. Officer Rodriguez—the arresting officer—had handcuffed the detainee and was transferring him to a transport van manned by Officer Curtis Crews, who was to take the detainee to the local jail. One of Mr. Saint-Vil's videos shows Officer Crews running; the other shows Officers Rodriguez and Crews handling the detainee outside of the transportation van. The parties contest whether this video was zoomed-in, which leaves unsettled the question of how close Mr. Saint-Vil was to the officers as he recorded. Regardless, this latter video shows that while handling the detainee, Officer Rodriguez said to Mr. Saint-Vil, “Hey, you need anything?” and signaled a thumbs up. (Saint-Vil Video, ECF No. 151.) The video abruptly ends there, and what happened next is the subject of this suit. A. Saint-Vil's account According to Mr. Saint-Vil, he responded to Officer Rodriguez with a “no, sir” and walked to the back of his van, which he parked nearby, to call his wife. (Compl. ¶ 20, ECF No. 1.) While he was on the phone with her, Officer Rodriguez “aggressively approached him” and “demanded to know what he was doing.” (Compl. ¶ 22; see also Dep. of Indre Grigaite 34:1-8, ECF No. 140-7.) He told Officer Rodriguez that he was waiting for some equipment but Officer Rodriguez simply “shouted to Mr. Saint-Vil, ‘you are coming with me.’ WESTLAW Ronald M. Saint-Vil, Plaintiff, v. City of Miami Beach and..., Slip Copy (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 2 ” (Compl. ¶¶ 21-22.) While he asked Officer Rodriguez why he was being detained, Mr. Saint-Vil saw Officer Rodriguez pull out a taser, which prompted him to yell “Sir, what are you doing?” (Compl. ¶ 22.) Next, “Officer Rodriguez, unprovoked and for no reason,” tased him. (Id.) *2 “In shock and disbelief ... Mr. Saint-Vil removed the taser probes from his body and ran toward the boardwalk behind the hotel[,]” which led to the beach. (Compl. ¶ 23.) As Officer Rodriguez pursued Mr. Saint-Vil on foot, he called for back- up. Officer Alfredo Garcia responded. Officer Garcia says he commanded Mr. Saint-Vil to stop, “yelling to him, ‘Police, stop, police.’ ” (Dep. of Off. Garcia 90:23 -24, ECF No. 135- 7.) Mr. Saint-Vil obeyed. After Mr. Saint-Vil stopped—at this point, on the beach— Officer Garcia says Mr. Saint-Vil assumed a “bladed stance” with clenched fists and arms held “in an aggressive manner ... around his chest,” which Officer Garcia thought to mean that Mr. Saint-Vil would resist arrest or try to harm him. (Id. 63:10-13, 64:7-11.) In response, Officer Garcia says he deployed his taser gun upon Mr. Saint-Vil, which incapacitated him and caused Mr. Saint-Vil to fall to the ground. (Id. 67:13-15.) Once the five-second taser cycle ended, Officer Garcia says he and Officer Rodriguez tried to handcuff Mr. Saint-Vil, who resisted them. (Id. 67:17-19.) Officer Garcia says he warned Mr. Saint-Vil that he would again tase him if he did not comply, but Mr. Saint -Vil continued to “tense his body and throw his arms and legs.” (Id. 67:19-21, 69:1-5.) Officer Garcia tased Mr. Saint-Vil a second time. Mr. Saint-Vil denies ever assuming “a threatening or fighting stance” toward Officer Garcia. (Decl. of Ronald Saint -Vil ¶ 14, ECF No. 140-2.) At some point on the beach, Mr. Saint- Vil passed out and later awoke to find himself handcuffed and surrounded by officers. (Dep. of Ronald Saint-Vil 165, ECF No. 72-1.) When he awoke, Mr. Saint-Vil says an officer derided him by saying “Who got the biggest dick now, [n****r!]” and “You thought you were fast [n****r], now we got you.” (Compl. ¶ 26.) He alleges at least one of those statements was said by Officer Rodriguez. (Id. n.1.)1 Later that night, Mr. Saint-Vil also says that Officer Rodriguez ordered him to “shut the [f**k] up, [n****r].” (Id. ¶ 28.) B. Officer Rodriguez's account Officer Rodriguez denies calling Mr. Saint-Vil a n****r. (Dep. of Off. Rodriguez 40:1-9, ECF No. 140-35.) He relates a different version of what happened after Mr. Saint-Vil's video cuts off. According to Officer Rodriguez, after he asked Mr. Saint-Vil if he needed anything, Mr. Saint-Vil said “no” but drew dangerously near to him and Officer Crews while they were in the process of changing the handcuffs on the detainee Mr. Saint-Vil recorded. “As a matter of fact, we had already taken the cuffs off [the detainee], so we couldn't have anybody approaching us.” (Dep. of Off. Rodriguez 16:14-15.) Officer Rodriguez says he repeatedly commanded Mr. Saint- Vil to step back but that Mr. Saint-Vil “continued approaching and getting closer.” (Id. 17:4-5.) In fact, he says Mr. Saint-Vil got close “to the point where I put my hand on his chest to make him stop.” (Id. 18:3-5.) Mr. Saint-Vil, in turn, says he was “never given any instructions[,]” and that if he had been instructed, he would have obeyed. (Dep. of Ronald Saint Vil 140:15-20.) But by Officer Rodriguez's account, Mr. Saint-Vil slapped his hand and “continued trying to push through [him].” (Dep. of Off. Rodriguez 19:4-5.) As a result, Officer Rodriguez says he approached Mr. Saint-Vil to arrest him for battery. That is when Officer Rodriguez says he noticed “a strong odor of alcohol emitting from [Mr. Saint-Vil's] breath” paired with slurred speech. (Id. 21:20-22:8.) Mr. Saint-Vil denies having more than one drink that night. (Dep. of Ronald Saint-Vil 94:17-26, 95:1-2.) *3 Officer Rodriguez did not tell Mr. Saint-Vil why he was being placed under arrest but commanded Mr. Saint-Vil to allow himself to be arrested. (Dep. of Off. Rodriguez 29:7-12, 29:21-24.) According to Officer Rodriguez, Mr. Saint-Vil would not comply. (Id.) As such, he says he grabbed Mr. Saint-Vil's arm and that Mr. Saint-Vil again slapped his hand. (Id. 16:19-20.) Officer Rodriguez says he first deployed his taser after Mr. Saint-Vil slapped his hand away this second time. (Id. 29:7-12.) Officer Crews, says he saw Mr. Saint-Vil “forcefully” push Officer Rodriguez's hand away. (Dep. of Off. Crews 69:20 - 22, ECF No. 135-3.) However, Mr. Saint-Vil denies ever initiating “any contact with the officer,” and says that that Officer Rodriguez “never placed his hand on my chest.” (Dep. WESTLAW Ronald M. Saint-Vil, Plaintiff, v. City of Miami Beach and..., Slip Copy (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 3 of Ronald Saint-Vil 141:3-13; see Decl. of Ronald Saint-Vil ¶ 12.) In any event, Officer Rodriguez's taser made contact with Mr. Saint-Vil but did not incapacitate him, thus allowing Mr. Saint-Vil to flee. (Dep. of Off. Rodriguez 31:15-17.) While in pursuit, Officer Rodriguez again deployed his taser unsuccessfully and called for help as described above. (Arrest Aff. 2, ECF No. 72-5.) By Officer Rodriguez's account, Officer Garcia caught up to Mr. Saint-Vil and successfully incapacitated him after administering a five-second taser shock. (Id.) Once that five-second cycle ended, Officer Rodriguez says he “tried to place Saint [sic] in custody but Saint kept on resisting and fighting.” (Id.) That led to Officer Garcia tasing Mr. Saint-Vil again. (Id.) Mr. Saint-Vil does not independently recall how many times he was tased; he says he “knocked out for a second” after he fled and woke up to approximately eight officers surrounding him. (Dep. of Ronald Saint-Vil 169:3-11.) While Officers Rodriguez and Garcia waited for other first responders to arrive, Officer Rodriguez recalls that Mr. Saint- Vil “was still being belligerent and [that] he had a strong odor of alcohol.” (Dep. of Off. Rodriguez 37:6-7.) He also says that Mr. Saint-Vil “vomited on the sand and you could smell a strong odor of alcohol coming from his vomit.” (Id. 37:8-9.) Mr. Saint-Vil was taken to Mount Sinai Hospital as a result of being tased. Medical records note that he appeared “oriented” and “well” with no mention of him appearing intoxicated. (ECF No. 140-4, 9.) Although the State originally charged Mr. Saint-Vil with crimes including battery, resisting arrest, and disorderly intoxication, it dropped all charges against him. (ECF No. 95 - 4.) This suit against the City and Officer Rodriguez follows. 2. Legal Standard Summary judgment is proper if following discovery, the pleadings, depositions, answers to interrogatorie s, affidavits and admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Fed. R. Civ. P. 56. An issue of fact is “material” if it “might affect the outcome of the suit under the governing law.” Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1303 (11th Cir. 2016) (cleaned up). “A material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. (internal citation and quotations omitted). The moving party bears the burden of proof t o demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. All the evidence and factual inferences reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1280 (11th Cir. 2004). “If more than one inference could be construed from the facts by a reasonable fact finder, and that inference introduces a genuine issue of material fact, then the district court should not grant summary judgment.” Bannum, Inc. v. City of Fort Lauderdale, 901 F.2d 989, 996 (11th Cir. 1990). *4 Once a party properly makes a summary judgment motion by demonstrating the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings through the use of affidavits, depositions, answers to interrogatories and admissions on file, and designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 323–24. The nonmovant's evidence must be significantly probative to support the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court will not weigh the evidence or make findings of fact. Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir. 2003). Rather, the Court will decide whether there is sufficient evidence upon which a reasonable juror could find for the nonmoving party. Id. 3. Discussion Mr. Saint-Vil alleges three counts against the City and seven counts against Officer Garcia.2 The Court evaluates each Defendant's motion for summary judgment individually. A. The City's Motion Mr. Saint-Vil sues the city for: (1) battery stemming from Officer Garcia's tasing him a second time (Count III); (2) negligent infliction of emotional distress (“NIED”) as a result of the same (Count IX); and (3) failure to train and supervise a . a . a . a . a . a . a . a . a . ~ . . . I ~ w ~ Ronald M. Saint-Vil, Plaintiff, v. City of Miami Beach and..., Slip Copy (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 4 Officers Crews and Garcia on account of Officer Crews's failure to intervene and Officer Garcia's excessive use of a taser (Count X). Under Florida law, the City is liable for any “injury or damage suffered as a result of an act, event, or omission” committed by an officer if the officer did not act “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). If the officer did act in such a manner, the officer is personally liable instead. Id. For the reasons below, the Court enters summary judgment in favor of the City on all counts. (1) Count III – Battery Mr. Saint-Vil does not allege that Officer Garcia acted with “bad faith.” Therefore, the City may be liable for the battery claim arising from Officer Garcia's second tase. Under Florida law, a battery occurs when a person “[a]ctually and intentionally touches or strikes another person against the will of the other[,]” or, where a person “[i]ntentionally causes bodily harm to another.” See Wolk v. Seminole Cnty., 276 F. App'x 898, 900 (11th Cir. 2008); Fla. Stat. § 784.03(1)(a). “However, [a] person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force.” Wolk, 276 F. App'x at 900 (cleaned up) (quoting Fla. Stat. § 776.012). Law enforcement officers “need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest.” Fla. Stat. § 776.05. An officer is “justified in the use of any force ... [w]hich he or she reasonably believes to be necessary to defend himself or herself or another from bodily harm while making the arrest. Id. at § 776.05(1). Thus, to prevail on his battery claim, Mr. Saint-Vil would have to prove that Officer Garcia could not have reasonably believed the second tase necessary to defend himself or others from bodily harm. See Fla. Stat. § 776.05(1). To do that, Mr. Saint-Vil would need to cite to some undisputed evidence in the record that a rational jury could rely on to substantiate the allegation that he had already passed out when Officer Garcia administered the second tase. Although the Court views the record in the light most favorable to him, Mr. Saint- Vil simply cannot do so. The record shows that he does not independently recall the event and is otherwise devoid of evidence that corroborates the notion that Mr. Saint-Vil was immobile when Officer Garcia tased him for the second time. For example: *5 THE WITNESS: I'm not aware of – I wasn't really made aware of how many times I was tased until after I spoke with my attorney. [...] Q: Well, you just said I didn't learn about this until I spoke to my attorney. A: Right, I didn't know that I was tased [t]hat many times. I didn't know. I know I was tased and I know I had blacked out, but I didn't know what was the reason for me passing out. Q: Yeah, but you only said you were tased one time, and that was back at the van when the officer first approached you, correct? A: I did say that I was tased at that time, but, you know, it was once they caught up to me on—on the beach, like I said, I had passed out, I didn't—I might have got tased and maybe passed out, I don't know. [...] Q: Sir, when you were on the beach you said you went unconscious, when in the whole sequence of events did you go unconscious? [...] A: When I was on the beach, that's the only time I remember. Q: Immediately after you were tased? [...] A: I don't remember. WEST ,LAW Ronald M. Saint-Vil, Plaintiff, v. City of Miami Beach and..., Slip Copy (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 5 (Dep. of Ronald Saint-Vil, 167:4-168:11, 285:20-286:5; see also Decl. of Ronald Saint-Vil ¶ 13.) Although Mr. Saint-Vil points to Richard Masten's proffered expert opinion that the use of force was “excessive,” (Opp. 6, ECF No. 138), Mr. Masten's generalized opinion cannot stand in for the particular facts crucial to Mr. Saint-Vil's claim. The fact is that Mr. Saint-Vil does not independently recall when he passed out relative to when Officer Garcia administered the second tase. That is fatal. Accord Anderson, 477 U.S. at 256 (a non- movant cannot defeat a properly supported motion for summary judgment “without offering any concrete evidence from which a reasonable juror could return a verdict in his favor and by merely asserting that the jury might, and legally could disbelieve the [movant.]”). Mr. Saint-Vil also argues that, even assuming Officer Garcia's facts as true, his second tase constitutes a battery because it ran contrary to City policy. (Op p. 5.) That argument fails as a matter of law. In Florida, violations of police department policies “may not be used to impose civil liability on a police officer who acts pursuant to a state statute.” Brown v. City of Clewiston, 644 F. Supp. 1417, 1421 (S.D. Fla. 1986) (Paine, J.) (citing Chastain v. Civil Svc. Brd. of Orlando, 327 So. 2d 230 (Fla. 4th DCA 1976) (“[I]n an action at law for civil damages, it is the state standard which is controlling, not the narrower departmental regulations.”))); see also Brown v. City of Clewiston, 848 F.2d 1534, 1539 (11th Cir. 1988) (“Actually Chief Miller was correct to say that the State statute [ Section 776.05] then in effect ‘superseded’ his policy manual in terms of the relevant standard for determining Officer Perez's criminal and civil liability under Florida law.”). The inquiry is whether Officer Garcia could have reasonably believed the second tase necessary to defend himself or others from bodily harm. See Fla. Stat. § 776.05(1). It is not whether Officer Garcia violated City policy. Accordingly, Mr. Saint-Vil's battery claim fails. (2) Count IX – NIED Next, Mr. Saint-Vil alleges NIED as a result of “being unnecessarily tased by Officer Garcia after [he] was already incapacitated[,]” or in other words—excessive force. (Compl. ¶ 85.) Again, the City's liability attaches here because Mr. Saint-Vil does not allege that Officer Garcia acted in “bad faith.” See Fla. Stat. § 768.28(9)(a). *6 However, under Florida law, Mr. Saint-Vil's NIED claim amounts to one for battery—not NIED. “Florida law dictates that [i]f excessive force is used in an arrest, the ordinarily protected use of force by a police officer is transformed into a battery.” Secondo v. Campbell, 327 F. App'x 126, 132 (11th Cir. 2009) (citing City of Miami v. Sanders, 672 So. 2d 46, 46 (Fla. 3d DCA 1996)); see also Essex Ins. Co. v. Big Top of Tampa, Inc., 53 So. 3d 1220, 1223 (Fla. 2d DCA 2011) (“Although couched in terms of negligence, O'Fell’s complaint alleges that Davis used excessive force while arresting him and that such force caused bodily injury to O'Fell ... [t]herefore, O'Fell’s complaint alleges a battery[.]”). Thus, Mr. Saint-Vil's NIED claim fails as indistinct from his battery claim. Yet, independent of the above, Mr. Saint-Vil's NIED claim also fails because Florida does not recognize a negligence claim premised solely on an intentional tort. See Brown v. J.C. Penney Corp., 521 F. App'x 922, 924 (11th Cir. 2013). Florida's Third District Court of Appeal put it as follows: “[T]here is no such thing as the ‘negligent’ commission of an ‘intentional’ tort. A contrary determination places a chilling effect on law enforcement efforts, and would render meaningless the defense under Section 776.05(1). Law enforcement officers should not have to worry about being ‘detectives of perspective’ concerning every potentional [sic] cause of action flowing from discretionary police functions.” Sanders, 672 So. 2d at 48 (cleaned up); see also Early v. City of Homestead, Fla., No. 18-24260-CIV, 2019 WL 3083422, at *2 (S.D. Fla. July 15, 2019) (Scola, J.) (“Defendants are correct that the Plaintiffs could not state a cause of action for negligent infliction of emotional distress based on intentional conduct[.]”); Bickel v. City of Coral Springs, No. 17-CV-60606, 2017 WL 2439078, at *5 (S.D. Fla. June 6, 2017) (Bloom, J.) (“Here, the specific negligent infliction of emotional distress alleged as the tortious conduct underlying Count IV's vicarious liability claim is not legally cognizable, as it unequivocally pertains to Carter's ‘wrongful’ use of force during Bickel's arrest.”); Guzman v. City of Hialeah, No. 15-23985-CIV, 2016 WL 3763055, at *7 (S.D. Fla. July 14, 2016) (Gayles, J.) (“[W]here a plaintiff alleges negligent infliction of emotional distress in the context of a police officer's infliction of an intentional tort, such a claim is [ l _ { ] _ [l_ { ] _ a . [ l _ { ] _ I . . I ~ . . . . I 1 - 1 1 1 w ~ Ronald M. Saint-Vil, Plaintiff, v. City of Miami Beach and..., Slip Copy (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 6 ‘non-cognizable.’ ”) (cleaned up); Garcia v. Carnival Corp., 838 F. Supp. 2d 1334, 1337 (S.D. Fla. 2012) (Moore, J.) (“[I]t is improper to state a claim for negligence premised solely on the defendant's alleged commission of an intentional tort.”). Although it is true that a NIED claim may stand as a result of some negligent act that occurred independent of the intentional tort, that is not the case here. See Sanders, 672 So. 2d at 48; Early, 2019 WL 3083422, at *2 (declining to dismiss a NIED claim pled in parallel to intentional excessive force claims where an arrestee was made to stand nude publicly). Mr. Saint-Vil defends his “NIED” claim by citing to City of Boynton Beach v. Weiss, 120 So.3d 606 (Fla. 4th DCA 2013). There, Florida's Fourth District Court of Appeal held that “[r]ecovery for negligent infliction of emotional distress” was “permitted” in a case where “the jury found th at the plaintiff had been battered.” Id. at 612. In so holding, the Weiss court cursorily found: “In Florida, the prerequisites for recovery for negligent infliction of emotional distress differ depend ing on whether the plaintiff has or has not suffered a physical impact from an external force. If the plaintiff has suffered an impact, Florida courts permit recovery for emotional distress stemming from the incident during which the impact occurred, and not merely the impact itself.” *7 Id. (citing Eagle–Picher Indus., Inc. v. Cox, 481 So.2d 517, 526 (Fla. 3d DCA 1985)). As support for its ruling, the Weiss court noted that this language had been “cited with approval” by the Florida Supreme Court in Willis v. Gami Golden Glades, LLC, 967 So. 2d 846, 850 (Fla. 2007). However, neither Willis nor Cox involved the question of whether a negligence claim premised on an intentional tort was cognizable. By the above language, both the Willis and Cox courts were merely expositing the fact that Florida recognizes two types of NIED claims: (1) ones where the plaintiff suffered a physical impact during the subject incident, and (2) ones where a person other than the plaintiff suffered an impact. Neither court came close to adjudicating the validity of a NIED claim premised on an intentional tort committed by a defendant. As such, the Court agrees with the City that Weiss is an “outlier decision that is inconsistent with the weight of authority[.]” (City's Reply 6, ECF No. 157.) In sum, Mr. Saint-Vil's NIED claim fails for two independent reasons. First, because it is tantamount to, and therefore duplicative of, his battery claim. And second, because it is not cognizable under Florida law, as Mr. Saint-Vil only alleges that his injuries were the result of an intentional, and not negligent, act. (3) Count X – Negligent training and supervision Last, Mr. Saint-Vil asserts a state law claim against the City for negligent supervision and training on two grounds: “91. Specifically, the City failed to supervise and train officers, like Officer Crews, regarding the duty to intervene if and when they witness a fellow officer detaining, or attempting to detain, an innocent person, and/or utilizing excessive force, and, subsequently, giving false testimony to support false charges against an innocent person. 92. The City further failed to supervise and train officers, like Officer Garcia, on the appropriate, lawful use of a taser. The City is or should have been aware that excessive use of force, particularly with tasers, has been a problem among City of Miami Beach Police Officers, given past instances of excessive force, including the death of a young graffiti artist, who was tasered and killed for spray-painting at a McDonalds.” (Compl. ¶¶ 91, 92.) In Florida, sovereign immunity attaches to a “city's decision regarding how to train its officers and what subject matter to include in the training[,]” because that decision represents a discretionary governmental function. Lewis v. City of St. Petersburg, 260 F.3d 1260, 1266 (11th Cir. 2001). By contrast, no immunity attaches to a city's implementation of its training and supervision policies. Id. Mr. Saint-Vil's allegation concerning the City's purported failure to train officers on a “duty to intervene” represents a clear challenge to the City's discretionary decision-making as to the content of its officers’ training modules. As such, in this respect, Mr. Saint-Vil's negligent training and supervision claim is barred by the City's sovereign immunity and fails as a matter of law. See Frazier v. Israel, No. 18-CV-61418, 2018 WESTlAW Ronald M. Saint-Vil, Plaintiff, v. City of Miami Beach and..., Slip Copy (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 7 WL 4599622, at *5 (S.D. Fla. Sept. 25, 2018) (Bloom, J.) (“Because Plaintiff's claim is premised upon the content of training by the Sheriff, the discretionary function exception to the waiver of sovereign immunity applies, and Plaintiff's claim is barred.”). *8 Mr. Saint-Vil's allegation concerning the City's purported failure to train officers on the lawful use of tasers also falls into this category. At face value, his claim expresses a generalized challenge concerning the quality of officers’ taser training. That entails the City's discretion over how to train its officers. Multiple courts have rejected similar claims. E.g., Waters v. City of Sunrise, No. 21-cv-62542, 2022 WL 1001488, at *10 (S.D. Fla. Apr. 3, 2022) (Bloom, J.) (rejecting a claim for failure to train officers on use of force); Casado v. Miami-Dade Cnty., 340 F. Supp. 3d 1320, 1331 (S.D. Fla. 2018) (O'Sullivan, Mag. J.) (same); Whitaker v. Miami-Dade Cnty., 126 F. Supp. 3d 1313, 1331 (S.D. Fla. 2015) (Lenard, J.) (barring a negligent supervision claim against a municipality for its purported failure “to adequately train its police officers to employ safe, reasonable, and necessary techniques designed to de-escalate encounters”). Thus, Mr. Saint-Vil's negligent supervision and training claim fails on both grounds stated in his complaint. (4) Additional Claims In the briefing on the City's motion, Mr. Saint-Vil attempts to stretch his claim beyond the confines of what the complaint avers by invoking a number of purported flaws in the City's training and supervision mechanisms. For example, Mr. Saint- Vil represents that his challenge actually goes to the City's controls in ensuring that officers are up -to-date with their annual taser recertification trainings. (See Opp. 9-10.) He says that Officer Crews violated the City's policy concerning body- worn cameras on the night in question. (Id. at 11.) And he also asserts that the City's internal affairs investigations are partial to officers. (Id. at 11-12.) These points are nowhere in Mr. Saint-Vil's complaint. Arguments in a motion do not amend the contents of a pleading. See Mahoney v. Owens, 818 F. App'x 894, 898 (11th Cir. 2020) (“[I]n making the necessary preliminary determination of what claims the plaintiff has actually raised ... [the Court is] bound by the contents of the plainti ff's pleadings, even on summary judgment.”) (cleaned up). It would be entirely inappropriate for Mr. Saint-Vil to amend his claim by way of motion briefing at this juncture. Indeed, “plaintiffs may not raise new claims at the summary judgment stage.” Id. (cleaned up). (a) Training and supervision of Officer Garcia However, in viewing the record in the light most favorable to Mr. Saint-Vil, the Court acknowledges that the argument concerning the timeliness of officers’ trainings can be reasonably read into paragraph 92 of the complaint. In that regard, Mr. Saint-Vil argues that because of a lapse in training, Officer “Garcia was in violation of the City's Taser policy and should not have been permitted to carry a taser between December 21, 2016 ... and April 19, 2017, when he took his first recertification course.” (Opp. 10.) That allegation challenges the City's implementation of its taser recertification training as applied to Officer Garcia—rather than the City's discretion—and thus, if viable, would open the City to liability. See Lewis, 260 F.3d at 1266. Yet, Mr. Saint-Vil has not established that his injuries were caused by any purported lapse in Officer Garcia's taser recertification training. Mr. Saint-Vil's suit deals with injuries he alleges he suffered as a result of the incidents occurring in the early morning of November 11, 2017. As his argument now goes, “had the City ensured its training and disciplinary policies were being properly executed and that Garcia and Rodriguez were attending all their required training courses, Garcia and Rodriguez may not have used their Tasers improperly” against him. (Opp. 11.) But the record is clear that Officer Garcia completed his annual taser recertification training on April 19, 2017, and thus was permitted to carry a taser on the night in question. (Sept. 15, 2021 Dep. of the City's Rep. Osvaldo Ramos 8:12-25, ECF No. 140-28; Off. Garcia Training History, ECF No. 140-30; see also Dep. of Richard Masten 218:20-25, ECF Nos. 166-1, 171-1.) In all, Mr. Saint-Vil has not shown, through undisputed evidence, that his injuries stem from a failure by the City to properly implement its taser training and supervision policies as to Officer Garcia in the referenced timeframe. Accordingly, Mr. Saint-Vil's negligent supervision and training claim would fail even if it applied to the City's supervision and training of Officer Garcia. WESTlAW Ronald M. Saint-Vil, Plaintiff, v. City of Miami Beach and..., Slip Copy (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 8 (b) Training and supervision of Officer Rodriguez *9 As seen above, Mr. Saint-Vil also discusses Officer Rodriguez's training and supervision. Again, the complaint does not mention Officer Rodriguez as the object of the negligent supervision and training claim. To the extent Mr. Saint-Vil purports to base his claim on the City's alleged shortcomings with respect to Officer Rodriguez, the Court finds this too represents an inappropriate attempt at modifying his pleading. Nevertheless, had Mr. Saint-Vil pled Officer Rodriguez as the object of this claim, it would still fail. Mr. Saint-Vil alleges that Officer Rodriguez, “in targeting, tasing, and arresting [him] for no apparent reason ... acted in bad faith and with a malicious purpose.” (Compl. ¶ 29.) That allegation is not without consequence. As discussed earlier, Mr. Saint-Vil cannot sue the City for injuries stemming from acts or omissions that an officer commits “in bad faith or with a malicious purpose[.]” Fla. Stat. ¶ 768.28(9)(a); McGhee v. Volusia Cnty., 679 So. 2d 729, 733 (Fla. 1996). Consequently, even if the City did inadequately train or supervise Officer Rodriguez on the appropriate use of a taser, Mr. Saint-Vil pled himself out of suing the City for purportedly failing to train and supervise Officer Rodriguez. See Keck v. Eminisor, 104 So. 3d 359, 366 (Fla. 2012) (in cases where an employee acts with bad faith or malicious purpose, “the plaintiff can recover only from the employee, not from the State.”); Dukes v. Miami-Dade Cnty., No. 05- 22665-CIV, 2006 WL 8433284, at *2 (S.D. Fla. July 10, 2006) (Huck, J.) (“Section 768.28 tends to cause plaintiffs to bring ‘mutually exclusive’ claims against a governmental entity and its employees.”); see also Fletcher v. City of Miami, 567 F. Supp. 2d 1389, 1394 (S.D. Fla. 2008) (Altonaga, J.) (“Florida courts have routinely held that a governmental entity may not be held liable where its employee's actions were malicious, in bad faith, or showed reckless and wanton disregard ....”); Bakri v. City of Daytona Beach, No. 608-CV-1572-ORL28GJK, 2009 WL 1587165, at *2 (M.D. Fla. June 5, 2009) (“even where malice is not an element of a cause of action, if a plaintiff pleads that the individual municipal agents acted maliciously, a valid claim is not stated against the municipality[.]”). The court in Vasconez v. Hansell analyzed this very point: “Suppose, for example, that a deputy commits a tort while acting within the scope of his or her office. Under Fla. Stat. § 768.28(9), the sheriff's department is automatically liable for the tort, unless it was committed ‘in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.’ In the former case, obviously, there is no need to assess the deputy's training, as the department is on the hook no matter what sort of training was provided. In the latter case, holding the department liable under a negligent training theory would appear to contravene Fla. Stat. § 768.28(9), which provides that the government ‘shall not be liable in tort for the acts or omissions of an officer, employee, or agent ... committed in bad faith or with malicious purpose or in a manner exhibiting willful disregard of human rights, safety, or property.’ ” 871 F. Supp. 2d 1339, 1344 (M.D. Fla. 2012) (citing Miami– Dade County v. Cardoso, 922 So.2d 301, 302 (3d DCA 2006) (Schwartz, J., concurring) (“ ‘negligent training’ is not, as a matter of law, a distinct theory of liability for compensatory damages which can form the basis of a separate award.”)). *10 This conclusion is consistent with the fact that Section 768.28 immunizes the City immunity from suit—not just liability—in respect of injuries resulting from officers’ “bad faith.” See White v. Mesa, 817 F. App'x 739, 742 (11th Cir. 2020). To be clear, the Court is not saying that Mr. Saint-Vil could not have pled his negligent training and supervision claim as an alternative claim. The record simply shows that he chose not to so do. Indeed, Mr. Saint-Vil's allegation of Officer Rodriguez's “bad faith” allegation is the basis for Mr. Saint-Vil's state law battery claims against Officer Rodriguez, which is premised on Officer Rodriguez's taser use. (Compl. ¶¶ 50, 54.) Section 768.28(9)(a) thus requires the Court to conclude that the City and Officer Rodriguez are incompatible defendants for purposes of a negligent training and supervision claim that concerns Officer Rodriguez's taser use. See Gregory v. Miami-Dade Cnty., Fla., 719 F. App'x 859, 873 (11th Cir. 2017) (“[I]f the factual allegations can occur only from bad faith or malicious or wanton and willful conduct, then the claim against the government entity fails under § 768.28.”); Willis v. Dade Cnty. Sch. Bd., 411 WEST ,LAW Ronald M. Saint-Vil, Plaintiff, v. City of Miami Beach and..., Slip Copy (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 9 So. 2d 245, 246 (Fla. 3d DCA 1982)(“We find no error in the determination of the trial court with respect to Count I that a complaint which alleges a ‘malicious’ assault and battery fails to state a cause of action pursuant to Section 768.28 ....”); see also Ford v. Rowland, 562 So. 2d 731, 734 (Fla. 5th DCA 1990) (claim against governmental entity barred by sovereign immunity where plaintiff must prove bad faith against an individual defendant to prevail in separate claim against that defendant); Parker v. State of Fla. Bd. of Regents ex rel. Fla. State Univ., 724 So. 2d 163, 169 (Fla. 1st DCA 1998) (same). Last, the Court notes that Mr. Saint-Vil makes no mention of Officer Rodriguez's “bad faith” in any of his claims against the City. This underscores Mr. Saint-Vil's intention to not plead in the alternative with respect to Officer Rodriguez's taser use. As such, Mr. Saint-Vil's negligent supervision and training claim against the City would fail even if it applied to the City's training and supervision of Officer Rodriguez— which it does not. B. Officer Rodriguez's Motion Mr. Saint-Vil asserts three claims against Officer Rodriguez under 42 U.S.C. § 1983 and four state law claims. The section 1983 claims are for: false arrest (Count IV); violation of the Fourteenth Amendment's Equal Protection Clause (Count V); and First Amendment retaliation (Count VII). The state law claims are for: false arrest (Count I), battery (Count II), intentional infliction of emotional distress (“IIED”) (Count VIII), and malicious prosecution (Count XI). (1) Section 1983 claims Officer Rodriguez argues that qualified immunity protects him from Mr. Saint-Vil's section 1983 claims. To receive qualified immunity, an officer “bears the initial burden [of] prov[ing] that he acted within his discretionary authority.” Strolis v. Heise, 834 F. App'x 523, 526 (11th Cir. 2020) (cleaned up), cert. denied, 142 S. Ct. 116 (2021). Once an officer clears that threshold, he is entitled to qualified immunity under section 1983 “unless (1) [he] violated a federal statutory or constitutional right, and (2) the unlawfulness of [his] conduct was clearly established at the time.” Id. (cleaned up). While viewing the record in the light most favorable to Mr. Saint-Vil, the Court finds that Officer Rodriguez has proven that he was acting within the scope of his discretionary authority as a police officer during the events in question. “[D]iscretionary authority includes all actions of a governmental official that (1) were undertaken pursuant to the performance of his duties, and (2) were within the scope of his authority.” Patel v. City of Madison, Ala., 959 F.3d 1330, 1338 (11th Cir. 2020) (cleaned up). *11 In considering whether Officer Rodriguez's actions on the night in question fell within his discretionary authority, the Court is to “strip out the allegedly illegal conduct” and look at the “general nature of [his] action[s], temporarily putting aside the fact that it may have been committed for an unconstitutional purpose, in an unconstitutional manner, to an unconstitutional extent, or under constitutionally inappropriate circumstances.” Spencer v. Benison, 5 F.4th 1222, 1231 (11th Cir. 2021) (cleaned up) (emphasis added); see also Carruth v. Bentley, 942 F.3d 1047, 1055 (11th Cir. 2019) (“A plaintiff cannot plead around qualified immunity simply by saying that the official was animated by an unlawful purpose. The exception would swallow the rule.”); Harbert Int'l, Inc. v. James, 157 F.3d 1271, 1282 (11th Cir. 1998) (“The inquiry is not whether it was within the defendant's authority to commit the allegedly illegal act. Framed that way, the inquiry is no more than an ‘untenable’ tautology.”). On the night in question, Officer Rodriguez was acting as an on-duty police officer responsible for safely transferring an arrestee to Officer Crews. It is within a law enforcement officer's authority to detain persons and to use force in doing so. Accordingly, putting the alleged constitutional infirmity aside, as it must, the Court finds that Officer Rodriguez was acting within the scope of his discretionary authority when he interacted with Mr. Saint-Vil. With that threshold matter resolved, the Court next finds that Mr. Saint-Vil's Equal Protection claim fails as a matter of law and that genuine issues of material fact prevent the Court from entering summary judgment with respect to the false arrest and First Amendment retaliation claims. WEST ,LAW Ronald M. Saint-Vil, Plaintiff, v. City of Miami Beach and..., Slip Copy (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 10 (a) Count V – Equal Protection claim To state an Equal Protection claim, Mr. Saint-Vil “must allege that through state action, similarly situated persons have been treated disparately ... and put forth evidence that [Officer Rodriguez's] actions were motivated by race.” See Draper v. Reynolds, 369 F.3d 1270, 1278 n.14 (11th Cir. 2004) (cleaned up). Thus, a showing of discriminatory effect in addition to one of a discriminatory purpose is required. See B.T. v. Battle, No. 21-10318, 2021 WL 4147087, at *3 (11th Cir. Sept. 13, 2021). The Eleventh Circuit recently reiterated this two -prong standard in Mahoney, 818 F. App'x 894. There, the plaintiffs alleged that an officer ordered them to a traffic stop because of their race. See id. at 897. The record included proof that the officer later resigned from his position “after his supervisor learned that he had used racial slurs and exchanged racially inflammatory memes and jokes with a colleague at a previous job.” Id. at 896. Nevertheless, the Eleventh Circuit held that the officer would still be entitled to summary judgment on an Equal Protection claim because the plaintiffs “presented no evidence that [Owens] treated [non-Black motorists] differently from Black motorists.” Id. at 899 (cleaned up). Here, Mr. Saint-Vil does not point to any evidence showing that Officer Rodriguez treated similarly-situated persons differently. To the contrary, the record reflects Officer Rodriguez's testimony that no arrestee has ever lodged a complaint against him on account of discrimination. (Dep. of Off. Rodriguez 76:7-8); see B.T., 2021 WL 4147087, at *5 (considering a defendant officer's testimony that he had not witnessed persons of other races engaging in conduct simi lar to the plaintiff's). Because Mr. Saint-Vil does not point to any evidence of disparate treatment, his Equal Protection claim fails. (b) Counts IV and VIII – False arrest and First Amendment retaliation claims The record is replete with issues of material fact that prevent the Court from reaching summary judgment in respect of Mr. Saint-Vil's false arrest and First Amendment retaliation claims. *12 As a threshold matter, the parties diverge on how close Mr. Saint-Vil was standing to Officer Rodriguez while he was transferring custody of the arrestee to Officer Crews. To recall, Mr. Saint-Vil's alleged interference with Officer Rodriguez's handling of the arrestee is what Officer Rodriguez says prompted the resulting interactions. Whereas Officer Rodriguez represents that he placed his hand on Mr. Saint- Vil's chest to keep him from coming close to the arrestee (Dep. of Off. Rodriguez 18:3-5), Mr. Saint-Vil unequivocally testified that “[t]he officer never placed his hand on [his] chest.” (Dep. of Ronald Saint Vil 141:6-7.) Even if the Court were to rely on the video recorded by Mr. Saint-Vil, Mr. Saint- Vil says he had zoomed in on his camera such that the physical distances reflected in it are not accurate. (See id. 121:13-19.) In addition, Officer Rodriguez says he made the decision to arrest Mr. Saint-Vil after he grabbed Mr. Saint-Vil's wrist and Mr. Saint-Vil allegedly slapped his hand away. (Dep. of Off. Rodriguez 21:21-24, 29:25-30:3.) However, Mr. Saint-Vil says that he “didn't do anything to restrict [Officer Rodriguez's] ability” to grab his wrist. (Id. 149:21-22, 151:9- 12.) These factual discrepancies go directly to the question of whether Officer Rodriguez had arguable probable cause to arrest Mr. Saint-Vil, which is determinative of the arrest's lawfulness. See Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1137 (11th Cir. 2007). They also carry strong implications for the First Amendment claim. See Khoury v. Miami-Dade Cnty. Sch. Brd., 4 F.4th 1118, 1126 (11th Cir. 2021). In respect of this latter claim, Mr. Saint-Vil must establish, among others, that there is a causal connection between Officer Rodriguez's purportedly retaliatory actions and Mr. Saint-Vil's exercise of his free speech (i.e. recording the arrestee's transfer). See id. at 1129. Because there is a “significant dispute about the circumstances leading up to Officer [Rodriguez's] decision to detain” Mr. Saint-Vil, both of these claims must be decided at trial. See id. at 1130. (2) State law claims Mr. Saint-Vil's state law claims for IIED (Count VIII) and battery (Count II) fail as a matter of law, but his claims for false arrest (Count I) and malicious prosecution (Count XI) must be decided at trial. WEST ,LAW Ronald M. Saint-Vil, Plaintiff, v. City of Miami Beach and..., Slip Copy (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 11 (a) Count VIII – IIED Florida courts “uphold claims of intentional infliction of emotional distress only in extremely rare circumstances.” Casado, 340 F. Supp. 3d at 1332 (cleaned up). To prevail on an IIED claim, Mr. Saint-Vil must show that: “(1) the wrongdoer's conduct was intentional or reckless; that is, he intended his behavior when he knew or should have known that emotional distress would likely result; (2) the conduct was outrageous; that is, as to go beyond all bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community; (3) the conduct caused emotional distress; and (4) the emotional distress was severe.” Id. Concerning the latter requirement, “severe emotional distress means emotional distress of such a substantial quality or enduring quality[ ] that no reasonable person in a civilized society should be expected to endure it.” Brown v. Bellinger, 843 F. App'x 183, 188 (11th Cir. 2021) (alteration in original) (citing Kim v. Jung Hyun Chang, 249 So. 3d 1300, 1305 (Fla. 2d DCA 2018)). Mr. Saint-Vil has not put forth evidence that a rational jury could rely upon to reasonably conclude that his distress meets this threshold. For starters, Mr. Saint-Vil has not sought any mental health treatment to remediate his purported distress. (Dep. of Ronald Saint-Vil 215:2-9.) Nor has he made any plans to seek such treatment. (Id. 243:2-13.) When asked to describe his distress resulting from the arrest, Mr. Saint-Vil described being “uncomfortable” and being anxious “about being pulled over” while driving because of his race. (Id. 216:1-12, 243:2-13.) He also described “isolat[ing] himself” to keep “out of danger.” (Id. 238:16-20.) *13 Apart from being uncorroborated by independently reliable evidence, this level of distress is insufficient for recovery on an IIED claim. See Greer v. Ivey, 767 F. App'x 706, 713 (11th Cir. 2019) (holding that the district court properly found that plaintiff failed to produce evidence beyond bare allegations of emotional distress at summary judgment phase where he complained of post-traumatic stress disorder, depression, anxiety, sleep loss, and fatigue); see also Kim, 249 So. 3d at 1306 (“[S]ignificant feelings of fright, shame, worry, and humiliations—and others besides— occasioned by the acts of others are, even if regrettable, an unavoidable part of living in society.”). Thus, Mr. Saint-Vil's IIED claim fails as a matter of law. (b) Count II – Battery In Florida, a plaintiff's battery claim is subsumed into his unlawful arrest claim if the battery claim concerns an act incident to the arrest. See, e.g., Lester v. City of Tavares, 603 So. 2d 18, 19 (5th DCA 1992) (holding that acts incident to an alleged unlawful arrest “do not give rise to an independent tort.”); Blanton v. Miami-Dade Cnty., No. 07- 22282-CIV, 2007 WL 3118517, at *2 (S.D. Fla. Oct. 23, 2007) (Seitz, J.) (citing Williams v. Mills, 65 F.3d 155, 158-59 (11th Cir. 1995)); see also Harris v. Miami-Dade Cnty. Dep't of Corrs., 160 F. App'x 814, 817 (11th Cir. 2005). Mr. Saint-Vil alleges that Officer Rodriguez committed battery when Officer Rodriguez tased him. (Compl. ¶¶ 47-52.) Putting aside the matter of whether Officer Rodriguez's use of the taser was justified, the record shows that he indisputably tased Mr. Saint-Vil after detaining him. The complaint plainly states as follows: “When Mr. Saint-Vil began questioning Officer Rodriguez, in a non-threatening manner, as to why he was being detained, Officer Rodriguez responded by tasering Mr. Saint-Vil.” (Compl. ¶ 47.) Before Officer Rodriguez deployed his taser, Officer Rodriguez told Mr. Saint-Vil that he was “coming with [him],” and the parties agree that Officer Rodriguez attempted to apprehend Mr. Saint-Vil by the wrist twice. (Dep. of Ronald Saint-Vil 144:9-16, 153-154; Dep. of Off. Rodriguez 29:7-12.) As such, Mr. Saint-Vil's battery claim is subsumed within his false arrest claim and fails as an independent charge. (c) Counts IV and XI – False arrest and malicious prosecution Mr. Saint-Vil's false arrest and malicious prosecution claims turn on the question of whether Officer Rodriguez had probable cause to arrest Mr. Saint-Vil. That inquiry requires a jury to make factual determinations that resolve the inconsistent accounts provided by the parties. In addition, the question of whether Mr. Saint-Vil can sue Officer Rodriguez for malicious prosecution under section 768.28(9)(a) requires a jury's determination as to whether he acted “in bad faith, with malicious purpose, or in a manner exhibiting wanton or willful disregard for human rights, safety, or WEST ,LAW Ronald M. Saint-Vil, Plaintiff, v. City of Miami Beach and..., Slip Copy (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 12 property.” McGhee, 679 So. 2d at 733. As such, Mr. Saint- Vil's false arrest and malicious prosecution claims must be resolved at trial. 4. Conclusion For the foregoing reasons, the Court grants the City's motion (ECF No. 132) in full and partially grants Officer Rodriguez's (ECF No. 134) as follows: 1. The Court enters summary judgment in favor of the City on Counts III (battery), IX (NIED), and X (negligent training and supervision), and 2. The Court enters summary judgment in favor of Officer Rodriguez on counts II (battery), V (violation of Equal Protection under section 1983), and VIII (IIED). The Court denies Officer Rodriguez's motion (ECF No. 134) as to counts I (state law false arrest), IV (false arrest under section 1983), VII (First Amendment retaliation), and XI (malicious prosecution).3 *14 Additionally, the denies as moot both motions (ECF Nos. 167 and 172) concerning Mr. Masten's deposition. Done and ordered, in Miami, Florida, on May 19, 2022. All Citations Slip Copy, 2022 WL 1591492 WESTlAW Ronald M. Saint-Vil, Plaintiff, v. City of Miami Beach and..., Slip Copy (2022) © 2022 Thomson Reuters. No claim to original U.S. Government Works. 13 Footnotes 1 In the summary judgment briefing, Mr. Saint-Vil represented that both statements came from Officer Rodriguez. (See Decl. of Ronald Saint-Vil ¶ 7; ECF No. 149, 4.) 2 The Complaint delineates through Count XI but does not contain a Count VI. 3 The complaint does not list a Count VI. End of Document © 2022 Thomson Reuters. No claim to original U.S. Government Works. WEST ,LAW UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO.: 20-61845-CIV-SINGHAL JAMIE SENKO, Plaintiff, v. COREY J. JACKSON, individually, DANIELLA MORENO, individually, and THE CITY OF MIAMI BEACH, a municipal corporation, Defendants. __________________________________________/ ORDER THIS CAUSE is before the Court on the Defendants’ Motion for Summary Judgment (DE [55]). Defendant’s Statement of Material Facts (DE [55-1]) was filed in conjunction with the instant motion (DE [55]). Plaintiff filed his Memorandum of Law in Opposition to the Defendants’ Joint Motion for Summary Judgment (“Response”) (DE [62]) and his Statement of Material Facts Challenging Defendants’ Motion for Summary Judgment (“Statement of Facts”) (DE [63]). Defendants have responded to Plaintiff’s additional facts in their Response to Plaintiff’s Statement of Material Facts (“Reply Statement of Facts”) (DE [72]) and Reply in Support of their Joint Motion for Summary Judgment (DE [73]). The parties have also filed video evidence in support of their positions. Accordingly, the matter is fully briefed and ripe for review. Case 0:20-cv-61845-AHS Document 79 Entered on FLSD Docket 05/19/2022 Page 1 of 29 2 I. PROCEDURAL HISTORY Cut to its core, this case arises out of a sad encounter between Plaintiff Jamie Senko (“Plaintiff”) and Miami Beach Police Department (“MBPD”) Officers during the early morning hours of December 10, 2019. At approximately 5:15 a.m., in Miami Beach, Florida, Plaintiff fell asleep while at the wheel of his running vehicle, with the gear in drive and his foot resting on the brake. Virtually every relevant fact was captured on video as recorded by body cameras worn by the MBPD Officers who were present at the scene of the subject incident.1 Eventually, as will be fleshed out more fully below, the parties realized this case never had to happen. But the issue before the Court today is whether on the record presented, defendants are entitled to summary judgment as a matter of law. The Court finds they are. On September 11, 2020, Plaintiff filed a seven-count Complaint (DE [1]) alleging excessive force against Defendant Corey J. Jackson (“Defendant Jackson”) (Count I) and Defendant Daniella Moreno (“Defendant Moreno”) (Count II); false imprisonment against Defendant Jackson (Count III) and Defendant Moreno (Count IV); state tort battery against Defendant Jackson (Count V) and Defendant Moreno (Count VI); and respondeat superior liability against Defendant City of Miami Beach (the “City”) (Count VII). The City filed its Answer and Affirmative Defenses to Complaint (the “City’s Answer”) (DE [12]) on October 8, 2020, wherein the City asserted thirteen affirmative defenses. Defendants Jackson and Moreno jointly filed their Answer and Affirmative Defenses to Plaintiff’s 1 This Court will refer to Defendants’ Notice of Conventionally Filing Certain Video Exhibits (DE [60]) as Defendants’ Video Exhibits (DE [60]) and Plaintiff’s Notice of Conventional Filing in Support of Plaintiff’s Memorandum of Law in Opposition to Defendants’ Joint Motion for Summary Judgment (DE [74]) as Plaintiff’s Video Exhibits (DE [74]). Case 0:20-cv-61845-AHS Document 79 Entered on FLSD Docket 05/19/2022 Page 2 of 29 3 Complaint (“Answer”) (DE [13]) on October 13, 2020, wherein they asserted thirty-one affirmative defenses. In support of the instant motion (DE [55]), Defendants conventionally filed a thumb- drive containing the following video recordings: Video 1, the Unredacted Body-Warn Camera Footage of Officer Melissa Rosa (“Defendants’ Video Ex. C”); Video 2, Body- Warn Camera Footage of Officer Daniella Moreno (“Defendants’ Video Ex. D”); Video 3, Body-Warn Camera Footage of Officer Corey Jackson (“Defendants’ Video Ex. E”); Video 7, the Unredacted Body-Warn Camera Footage of Sergeant Wilson Romero (“Defendants’ Video Ex. G”); and Video 11, Body-Warn Camera Footage of Sergeant Wilson Romero (“Defendants’ Video Ex. H”).2 See (Defendants’ Video Exhibits (DE [60]), filed Oct. 4, 2021). In support of his opposition to summary judgment (DE [62]), Plaintiff conventionally filed a thumb-drive containing the following video recordings: Video 1, Body-Warn Camera Footage of Officer Melissa Rosa (“Plaintiff’s Video Ex. 1”); Video 2, Body-Warn Camera Footage of Officer Daniella Moreno (“Plaintiff’s Video Ex. 2”); Video 3, Body- Warn Camera Footage of Officer Corey Jackson (“Plaintiff’s Video Ex. 3”); Video 7, Body- Warn Camera Footage of Sergeant Wilson Romero (“Plaintiff’s Video Ex. 7”).3 See (Plaintiff’s Video Exhibits (DE [74]), filed Oct. 21, 2021). In their Reply Statement of Facts (DE [72]), Defendants request this Court strike or disregard those portions of Plaintiff’s Statement of Facts (DE [63]) which violate Local Rule 56.1. Nonetheless, Defendants addressed Plaintiff’s additional statements 2 For ease of reference, this Court will make citations to the Defendants’ Video Exhibits (DE [60]) as follows: (Def.’s Video Ex. C at 0:hh:mm). 3 For ease of reference, this Court will make citations to the Plaintiff’s Video Exhibits (DE [74]) as follows: (Pl.’s Video Ex. 2 at 0:hh:mm). Case 0:20-cv-61845-AHS Document 79 Entered on FLSD Docket 05/19/2022 Page 3 of 29 4 beginning on paragraph 32 through 62 of Plaintiff’s Statement of Facts (DE [63]). Beginning on paragraph 32 through 62 of Plaintiff’s Statement of Facts (DE [63]), Plaintiff seemingly disputes Defendants’ facts, however, he cites no record evidence refuting them. Likewise, with the exception of Paragraphs 8, 16, 51, 53, 56–59 thereof, the Statement of Disputed Material Facts (DE [63]) does not provide evidentiary citations supporting Plaintiff’s position as required by Local Rule 56.1(b)(2)(C). See (Pl.’s Resp. (DE [63]) at ¶¶ 8, 16, 51, 53, 56–59); see also Fed. R. Civ. P. 56(c)(1)(A), (B); S. D. Fla. L. R. 56.1(a)(2), (c); see also Fed. R. Civ. P. 56(e) (“If a party fails to properly . . . address another party’s assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion . . . .”). The Court will not expend valuable judicial resources searching for resolution of such purported factual disputes. See S.D. Fla. L.R. 56.1(a)(2) (“An opponent’s Statement of Material Facts shall clearly challenge any purportedly material fact asserted by the movant that the opponent contends is genuinely in dispute.”) (emphasis added). II. BACKGROUND FACTS On December 10, 2019, at approximately 5:15 a.m.,4 MBPD Officer Melissa Rosa (“Officer Rosa”) was on duty and driving her patrol vehicle when she observed a Toyota Camry (the “Camry”) stopped in the proper lane of travel at the intersection of 10th Street and Alton Road. See (Def. Stat. (DE [55-1]) at ¶¶ 1–2); (Pl. Stat. (DE [63]) at ¶¶ 1–2) (“There is no dispute of material fact as to paragraph 1 of the Defendants’ Statement of Facts.”); see also (Def.’s Video Ex. C at 0:00:00); (Pl.’s Video Ex. 1 at 0:00:00). Officer 4 Plaintiff disputes, without citation, that the Offense Incident Report (“OIR”) written by Officer Rosa indicates that she observed the Plaintiff’s vehicle at 4:44 a.m., not 5:15 a.m. See (Pl. Stat. (DE [63]) at ¶ 2) (“There is no dispute of material fact as to paragraph 2 of the Defendants’ Statement of Facts.”). Case 0:20-cv-61845-AHS Document 79 Entered on FLSD Docket 05/19/2022 Page 4 of 29 5 Rosa had parked her patrol vehicle behind the Camry with her emergency lights, headlights, and overhead takedown lights illuminating the Camry. Id. at ¶ 3; (Pl. Stat. (DE [63]) at ¶ 3 (“There is no dispute of material fact as to paragraph 3 of the Defendants’ Statement of Facts.”); see also (Def.’s Video Ex. C at 0:00:00); (Pl.’s Video Ex. 1 at 0:00:00). The Camry’s engine was running, it’s brake lights and headlights were on. Id. at ¶ 4; (Pl. Stat. (DE [63]) at ¶ 4 (“There is no dispute of material fact as to paragraph 4 of the Defendants’ Statement of Facts.”); see also (Def.’s Video Ex. C at 0:00:00); (Pl.’s Video Ex. 1 at 0:00:00). Officer Rosa exited her vehicle and approached the driver’s side door of the Camry and observed Plaintiff seemingly asleep in the driver’s seat with his head leaning against the driver’s window. See (Def. Stat. (DE [55-1]) at ¶ 5); (Pl. Stat. (DE [63]) at ¶ 5 (“There is no dispute of material fact as to paragraph 5 of the Defendants’ Statement of Facts.”); (Def.’s Video Ex. C at 0:00:00–0:00:07) (showing the driver’s side window was fogged up with condensation and there was no movement within the vehicle). Officer Rosa assumed Plaintiff’s foot was on the brake because the Camry’s brake lights were on. Id. at ¶ 6; (Pl. Stat. (DE [63]) at ¶ 6 (“There is no dispute of material fact as to paragraph 6 of the Defendants’ Statement of Facts.”); (Def.’s Video Ex. C at 0:00:00–0:02:08); see also (Pl.’s Video Ex. 1 at 0:02:08). Officer Rosa then radioed her observation of the Camry over police radio, calling in a description of the vehicle and the plate number, and requesting a “15”, which is a request for backup to assist her on the stop. Id. at ¶ 7; (Pl. Stat. (DE [63]) at ¶ 7 (“There is no dispute of material fact as to paragraph 7 of the Defendants’ Statement of Facts.”); (Def.’s Video Ex. C at 0:00:12–0:00:47). While Officer Rosa waited for backup beside her patrol vehicle, she honked the Case 0:20-cv-61845-AHS Document 79 Entered on FLSD Docket 05/19/2022 Page 5 of 29 6 horn of her patrol vehicle six times, but Plaintiff did not react at all. See (Def. Stat. (DE [55-1]) at ¶ 8); (Def.’s Video Ex. C at 0:00:47–0:01:48). A few minutes after Officer Rosa’s request for backup, MBPD Officer Daniella Moreno (“Officer Moreno”) arrived at the scene and asked Officer Rosa: “You ready?” before beginning their approach of the Camry. (Def.’s Video Ex. C at 0:01:49–0:02:13); (Def.’s Video Ex. D at 0:00:08); see also (Pl.’s Video Ex. 2 at 0:00:08). As Officers Rosa and Moreno were preparing to approach the Camry, MBPD Officer Corey Jackson (“Officer Jackson”) arrived at the scene in response to Officer Rosa’s request for backup. Id. at ¶ 10; (Pl. Stat. (DE [63]) at ¶ 10 (“There is no dispute of material fact as to paragraph 10 of the Defendants’ Statement of Facts.”); (Def.’s Video Ex. C at 0:02:22); (Def.’s Video Ex. D at 0:00:14–0:00:20). Officer Moreno clicked on her flashlight and approached the driver side of the Camry while Officer Rosa reapproached the Camry from the passenger side. Id. at ¶ 9; (Pl. Stat. (DE [63]) at ¶ 9 (“There is no dispute of material fact as to paragraph 9 of the Defendants’ Statement of Facts.”); (Def.’s Video Ex. C at 0:01:49–0:02:13); (Def.’s Video Ex. D at 0:00:08); see also (Pl.’s Video Ex. 2 at 0:00:08). Next, Officer Rosa verbally asks Officer Moreno: “is he okay?;” as she wipes condensation from the passenger side window. (Def.’s Video Ex. C at 0:02:13–0:02:19); see also (Pl.’s Video Ex. 1 at 0:02:13–0:02:19). Officer Moreno then exclaims: “Oh, he works here! He works here, hold on,” while flashing the light through the driver’s side window. (Def.’s Video Ex. D at 0:00:15–0:00:21); see also (Pl.’s Video Ex. 2 at 0:15:21). Officer Rosa opened the passenger door while Officer Moreno opened the driver door. See (Def. Stat. (DE [55-1]) at ¶¶ 12–13); (Pl. Stat. (DE [63]) at ¶ 12 (“There is no dispute of material fact as to paragraph 12 of the Defendants’ Statement of Facts.”); Case 0:20-cv-61845-AHS Document 79 Entered on FLSD Docket 05/19/2022 Page 6 of 29 7 (Def.’s Video Ex. C at 0:02:19–0:02:22); see also (Pl.’s Video Ex. 2 at 0:00:22–0:00:24). When Officer Moreno opened the driver’s side door, she found Plaintiff slightly slumped over, as though leaning against the window. (Def.’s Video Ex. D at 0:00:22–0:00:26); see also (Pl.’s Video Ex. 2 at 0:00:22–0:00:26). Officers Rosa and Moreno were able to open both front doors, all the way open, before Plaintiff reacted. (Def.’s Video Ex. D at 0:00:27); see also (Pl.’s Video Ex. 2 at 0:00:27). Officer Moreno began to instruct Officer Rosa to put the car in park when Plaintiff placed his left hand on the steering wheel. (Def.’s Video Ex. D at 0:00:28); see also (Pl.’s Video Ex. 2 at 0:00:28). Plaintiff appeared startled and disoriented. Id. at ¶ 13; (Pl. Stat. (DE [63]) at ¶ 13) (reframing of facts without citation); (Def.’s Video Ex. C at 0:02:22–0:02:25); (Def.’s Video Ex. D at 0:00:26–0:00:30); see also (Pl.’s Video Ex. 2 at 0:00:26–0:00:30). Officer Jackson exited his patrol vehicle, approached the Camry, and observed the Camry was in gear because the brake lights were on. See (Def. Stat. (DE [55-1]) at ¶ 14); (Def.’s Video Ex. C at 0:02:22); (Def.’s Video Ex. E at 0:00:16–0:00:24); see also (Pl.’s Video Ex. 2 at 0:00:16–0:00:24). Officer Jackson approached the Camry first on the passenger side towards Officer Rosa then quickly moved to the driver’s side of the Camry next to Officer Moreno. (Def.’s Video Ex. E at 0:00:20–0:00:30); see also (Pl.’s Video Ex. 2 at 0:00:20–0:00:30). While looking at Officer Moreno, Plaintiff placed his left hand on the steering wheel of the Camry as the officers instructed him to stop. See (Def. Stat. (DE [55-1]) at ¶ 14); (Def.’s Video Ex. C at 0:02:22–0:02:27) (“No, no, no, stop the car,” Officer Moreno. “Hey, hey, hey, stop the car,” Officer Rosa); (Def.’s Video Ex. D at 0:00:27–0:00:30) (same); (Def.’s Video Ex. E at 0:00:30–0:00:31) (same); see also (Pl.’s Video Ex. 2 at 0:00:27–0:00:30) (same); (Pl.’s Video Ex. 2 at 0:00:30–0:00:31) (same). Case 0:20-cv-61845-AHS Document 79 Entered on FLSD Docket 05/19/2022 Page 7 of 29 8 As Officers Rosa and Moreno were attempting to secure the Camry, the Camry began to slowly roll forward. See (Def. Stat. (DE [55-1]) at ¶¶ 14–15); (Def.’s Video Ex. C at 0:02:24–0:02:28); (Def.’s Video Ex. D at 0:00:29–0:00:32); (Def.’s Video Ex. E at 0:00:31–0:00:34); see also (Pl.’s Video Ex. 2 at 0:00:29–0:00:32); (Pl.’s Video Ex. 2 at 0:00:31–0:00:34). Plaintiff did not comply with the MBPD officers’ instruction; as a result, Officer Jackson physically moved past Officer Moreno, reached into the Camry, and put the Camry’s transmission into park. See (Def. Stat. (DE [55-1]) at ¶¶ 16–17); (Def.’s Video Ex. C at 0:02:27–0:02:28); (Def.’s Video Ex. D at 0:00:29–0:00:32); (Def.’s Video Ex. E at 0:00:31–0:00:34); see also (Pl.’s Video Ex. 2 at 0:00:29–0:00:32); (Pl.’s Video Ex. 2 at 0:00:31–0:00:34). Officer Jackson then grabbed Plaintiff’s left hand from the Camry’s steering wheel while repeatedly issuing loud verbal commands for Plaintiff to get out of the Camry. See (Def. Stat. (DE [55-1]) at ¶ 19); (Def.’s Video Ex. C at 0:02:29– 0:02:33); (Def.’s Video Ex. E at 0:00:34–0:00:47); see also (Pl.’s Video Ex. 2 at 0:00:34– 0:00:47). Plaintiff did not comply with the MBPD officers’ requests, despite being asked over thirty times. (Def.’s Video Ex. C at 0:02:22–0:03:01) (shouting different iterations of: “Get out the car!” “Out, out, out the car!” “Get out of the car, man!” “Get out of the fucking car, bro!”); (Def.’s Video Ex. D at 0:00:27–0:01:05) (same); (Def.’s Video Ex. E at 0:00:35– 0:01:05) (same); see also (Pl.’s Video Ex. 2 at 0:00:27–0:01:05); (Pl.’s Video Ex. 2 at 0:00:35–0:01:05). Officer Jackson attempted to pull Plaintiff from the Camry by his left arm but was unsuccessful as Plaintiff was seemingly confused but physically non- compliant, shifting away from the MBPD officers and flailing his arms. See (Def. Stat. (DE [55-1]) at ¶ 23); (Pl. Stat. (DE [63]) at ¶ 23) (undisputed); (Def.’s Video Ex. C at Case 0:20-cv-61845-AHS Document 79 Entered on FLSD Docket 05/19/2022 Page 8 of 29 9 0:02:30–0:02:47); (Def.’s Video Ex. D at 0:00:33–0:00:44); (Def.’s Video Ex. E at 0:00:41– 0:00:47); see also (Pl.’s Video Ex. 2 at 0:00:33–0:00:44); (Pl.’s Video Ex. 2 at 0:00:41– 0:00:47). Officer Moreno attempted to assist Officer Jackson by reaching for Plaintiff’s right arm while the MBPD officers at the scene kept repeating their instructions for Plaintiff to get out of the Camry. (Def.’s Video Ex. D at 0:00:45–0:00:50); see also (Pl.’s Video Ex. 2 at 0:00:45–0:00:50). With the Camry still running—though the transmission was in park due to Officer Jackson’s actions—Officer Jackson grabbed Plaintiff by the ankles and pulled Plaintiff from the driver’s seat and away from the Camry. See (Def. Stat. (DE [55-1]) at ¶¶ 21–22); see (Def.’s Video Ex. C at 0:02:57–0:03:03); (Def.’s Video Ex. D at 0:00:58–0:01:05); (Def.’s Video Ex. E at 0:01:00–0:01:06); see also (Pl.’s Video Ex. 2 at 0:00:58–0:01:05); (Pl.’s Video Ex. 2 at 0:01:00–0:01:06). Once Plaintiff had been removed from the vehicle, Officer Moreno, Officer Jackson, and MBPD Officer Leon Azicri (“Officer Azicri”) rolled Plaintiff onto his stomach and handcuffed him with his hands behind his back. Id. at ¶ 24; (Pl. Stat. (DE [63]) at ¶ 24 (“There is no dispute as the facts as described in paragraph 24.”); (Def.’s Video Ex. C at 0:03:03–0:03:21); (Def.’s Video Ex. D at 0:01:09–0:01:26) (“Turn your ass around,” instructed Officer Moreno.); see also (Pl.’s Video Ex. 2 at 0:01:09–0:01:26) (same). Officer Jackson approached the Camry for a visual inspection of the driver’s side, audibly stating: “He’s gotta be high.” (Def.’s Video Ex. E at 0:01:20–0:02:06); see also (Pl.’s Video Ex. 2 at 0:01:20–0:02:06). While Plaintiff was handcuffed on the ground, Officer Rosa conducted a pat-down search on his person while asking: “What the hell is wrong with you, man? What are you on?” (Def.’s Video Ex. C at 0:03:22–0:03:59). “What do you mean,” Plaintiff mumbled. (Def.’s Video Ex. D at 0:01:30); see also (Pl.’s Video Ex. Case 0:20-cv-61845-AHS Document 79 Entered on FLSD Docket 05/19/2022 Page 9 of 29 10 2 at 0:01:30) (same). While conducting the search of his person, Officer Moreno warned Plaintiff not to move, at which point, Plaintiff spoke audibly for the first time: “I’m not trying to cause a problem.” (Def.’s Video Ex. C at 0:04:00–0:04:09); (Def.’s Video Ex. D at 0:01:50–0:02:15); see also (Pl.’s Video Ex. 2 at 0:01:50–0:02:15). The MBPD officers then moved Plaintiff into a seated position on the ground while they conducted an investigation of the scene. Id.; (Pl. Stat. (DE [63]) at ¶ 24 (“There is no dispute as the facts as described in paragraph 24.”); (Def.’s Video Ex. C at 0:04:10–0:04:30). While handcuffed on the ground, Plaintiff was evaluated and questioned by the MBPD officers in an effort to determine how he came to be disoriented and passed out behind the wheel of the running Camry in the middle of the street. See (Def. Stat. (DE [55-1]) at ¶ 25); (Pl. Stat. (DE [63]) at ¶ 25 (“There is no dispute as the facts as described in paragraph 25.”); (Def.’s Video Ex. C at 0:04:10–0:02:27). Officer Moreno asked: “Jamie, you work at Whole Foods,” Plaintiff nodded in response. (Def.’s Video Ex. C at 0:04:27–0:04:30); (Def.’s Video Ex. D at 0:02:30–0:02:37); (Def.’s Video Ex. E at 0:02:32– 0:02:40); see also (Pl.’s Video Ex. 2 at 0:02:30–0:02:37); (Pl.’s Video Ex. 2 at 0:02:32– 0:02:40). Officer Moreno then asked: “Where were you coming from tonight?” (Def.’s Video Ex. C at 0:04:35–0:04:36); (Def.’s Video Ex. D at 0:02:38); (Def.’s Video Ex. E at 0:02:41–0:02:42); see also (Pl.’s Video Ex. 2 at 0:02:38); (Pl.’s Video Ex. 2 at 0:02:41– 0:02:42). “I was coming from my house,” Plaintiff responded. (Def.’s Video Ex. C at 0:04:37–0:04:38); (Def.’s Video Ex. D at 0:02:40–0:02:41); (Def.’s Video Ex. E at 0:02:42– 0:02:44); see also (Pl.’s Video Ex. 2 at 0:02:40–0:02:41); (Pl.’s Video Ex. 2 at 0:02:42– 0:02:44). “I don’t understand what happened,” Plaintiff continued. (Def.’s Video Ex. C at 0:04:38–0:04:40); (Def.’s Video Ex. D at 0:02:41–0:02:43); (Def.’s Video Ex. E at 0:02:44– Case 0:20-cv-61845-AHS Document 79 Entered on FLSD Docket 05/19/2022 Page 10 of 29 11 0:02:46); see also (Pl.’s Video Ex. 2 at 0:02:41–0:02:43); (Pl.’s Video Ex. 2 at 0:02:44– 0:02:46). Officer Moreno then began searching the driver side of the Camry as Plaintiff was taken and placed in the back of Officer Rosa’s patrol vehicle. (Def.’s Video Ex. C at 0:05:11–0:06:04); (Def.’s Video Ex. D at 0:03:14–0:03:42); see also (Pl.’s Video Ex. 2 at 0:03:14–0:03:42). Officer Jackson stated to Officer Moreno: “They tried to take off with me in the car!” (Def.’s Video Ex. D at 0:03:41–0:03:43); (Def.’s Video Ex. E at 0:03:43– 0:03:45); see also (Pl.’s Video Ex. 2 at 0:03:41–0:03:43); (Pl.’s Video Ex. 2 at 0:03:43– 0:03:45). Officers Jackson and Moreno discuss whether Plaintiff is under the influence or whether he fell asleep. (Def.’s Video Ex. D at 0:03:44–0:03:58); (Def.’s Video Ex. E at 0:03:46–0:03:59); see also (Pl.’s Video Ex. 2 at 0:03:44–0:03:58); (Pl.’s Video Ex. 2 at 0:03:46–0:03:59). The MBPD officers then express confusion over Plaintiff’s inaction and non-compliance during the stop. (Def.’s Video Ex. C at 0:06:11–0:06:18) (Def.’s Video Ex. D at 0:03:58–0:04:30) (responding to Officer Jackson: “That’s the only thing that concerns me is that why did he act like that?”); (Def.’s Video Ex. E at 0:04:00–0:04:23) (asking rhetorically: “Why did he act like that?”); see also (Pl.’s Video Ex. 2 at 0:03:58– 0:04:30) (same); (Pl.’s Video Ex. 2 at 0:04:00–0:04:23). Officer Rosa then entered her patrol vehicle, wherein a conversation with Plaintiff began. (Def.’s Video Ex. C at 0:06:30). “What is wrong with you? Tell me the truth,” Officer Rosa asked. (Def.’s Video Ex. C at 0:06:51–0:06:53). Plaintiff almost unintelligibly mumbles: “What?” (Def.’s Video Ex. C at 0:06:54). “What are you on? Did you take a pill? Are you tired? What’s going on with you?” (Def.’s Video Ex. C at 0:06:54–0:06:57). “No, I’m just tired. I was pulling up,” the rest of Plaintiff’s statement is inaudible. (Def.’s Case 0:20-cv-61845-AHS Document 79 Entered on FLSD Docket 05/19/2022 Page 11 of 29 12 Video Ex. C at 0:06:58–0:07:00). “You didn’t pull up, you’ve been there for the past five minutes.” (Def.’s Video Ex. C at 0:07:00–0:07:03). Plaintiff responded: “Well, ‘cause when I first pulled up there was a truck sitting out there, I waited for him to reverse in.” (Def.’s Video Ex. C at 0:07:04–0:07:10). “So, why when we told you to get out, why didn’t you get out?” (Def.’s Video Ex. C at 0:07:11–0:07:13). Plaintiff’s exact response is inaudible, but Plaintiff states he was going to take a nap and passed out. (Def.’s Video Ex. C at 0:07:14–0:07:22). Officer Rosa asked Plaintiff again: “I’m asking you, why didn’t you get out when we told you to?” (Def.’s Video Ex. C at 0:07:23–0:07:25). Plaintiff responds: “Because I honestly didn’t hear you guys until you pulled me out and threw me on the ground.” (Def.’s Video Ex. C at 0:07:26–0:07:28). “We told you like five times,” Officer Rosa responded, though the video evidence indicates the request was made almost thirty times by the MBPD officers present at the scene. (Def.’s Video Ex. C at 0:07:29). The MBPD officers then discuss what to do with the Camry; that Plaintiff works at the Whole Foods; leaving the Camry in the parking lot; and Plaintiff lives in Pompano Beach. (Def.’s Video Ex. C at 0:08:30–0:09:25). The MBPD officers then discuss Plaintiff’s action during the stop, what measures should be taken, and whether Plaintiff was under the influence or just tired from the drive from Pompano Beach. (Def.’s Video Ex. C at 0:09:26–0:10:14). Officer Jackson then approached the back passenger window of Officer Rosa’s patrol vehicle where Plaintiff was being held. (Def.’s Video Ex. C at 0:10:15). Officer Jackson asked Plaintiff if he had anything to drink, to which Plaintiff responded: “no, sir.” (Def.’s Video Ex. C at 0:10:21–0:07:25). Plaintiff then explained: “I was trying to pull in Case 0:20-cv-61845-AHS Document 79 Entered on FLSD Docket 05/19/2022 Page 12 of 29 13 here to take a nap before work, I got here kind of early, and the truck was out here.” (Def.’s Video Ex. C at 0:10:29–0:10:34). “Ok, so question,” Officer Jackson continued, “when I opened the door and tried to talk to you, why were you trying to drive off with me in the car?” (Def.’s Video Ex. C at 0:10:34–0:10:42). Officer Jackson was surprised by Plaintiff’s response that he fell asleep at the wheel, with the transmission in drive, his foot on the brakes, while waiting for a truck to back in. (Def.’s Video Ex. C at 0:10:43–0:11:23). Plaintiff then explained: “I ain’t gunna lie [unintelligible]. I don’t remember having an interaction with you. I just remember like waking up and I had the cops in my face and I was on the ground.” (Def.’s Video Ex. C at 0:11:23–0:11:35). “You slapped my hand and everything,” Officer Jackson responded. (Def.’s Video Ex. C at 0:11:38–0:11:39). MBPD Sergeant Wilson Romero (“Sergeant Romero”), the patrol supervisor, also questioned and evaluated Plaintiff while he was in the patrol vehicle, Plaintiff complained he felt dizzy and his head was spinning. Id. at ¶¶ 25–26; (Pl. Stat. (DE [63]) at ¶¶ 25–26 (“There is no dispute as [to] the facts as described in paragraph 25.”); (Def.’s Video Ex. G at 0:00:00–0:01:26). “Hey, brother. What’s going on, man? How are you? Hey, you alright man, what’s going on?” (Pl.’s Video Ex. 7 at 0:00:00–0:00:12). Plaintiff advised Sergeant Romero he was really tired, taking anti-depressants, had worked a long shift at the Whole Foods Market, and had not slept the previous evening. Id. at ¶ 26; (Pl. Stat. (DE [63]) disputed); (Def.’s Video Ex. G at 0:00:00–0:01:30); see also (Pl.’s Video Ex. 7 at 0:00:12–0:01:30); (Pl.’s Video Ex. 7 at 0:00:59–0:01:05) (responding to Sergeant Romero’s question: “Nah, I’m on anti-depressants.”) Plaintiff explained that he must have dozed off while waiting for the truck to move. (Pl.’s Video Ex. 7 at 0:00:39–0:00:45). Sergeant Romero asked Plaintiff if anything hurt, to which Plaintiff responded his back Case 0:20-cv-61845-AHS Document 79 Entered on FLSD Docket 05/19/2022 Page 13 of 29 14 hurt from being on his feet too long after working twelve hours. (Def.’s Video Ex. G at 0:01:30–0:01:50); see also (Pl.’s Video Ex. 7 at 0:01:31–0:01:50). The store manager from Whole Foods where Plaintiff worked arrived at the scene, advised the MBPD officers Plaintiff was tired from working really long hours, and told Plaintiff it would be fine if he did not come in to work later that morning. (Def.’s Video Ex. G at 0:02:46–0:03:06); see also (Pl.’s Video Ex. 7 at 0:02:46–0:03:06). Following questions from Sergeant Romero, the store manager advised him that Plaintiff worked for her, that Plaintiff worked the late shift the night before until closing and was scheduled to work again at five the next morning, less than five hours later. (Def.’s Video Ex. G at 0:03:27–0:03:47); see also (Pl.’s Video Ex. 7 at 0:03:27–0:03:47). The store manager advised he was covering for two teams. (Def.’s Video Ex. G at 0:03:50–0:03:54); see also (Pl.’s Video Ex. 7 at 0:03:50–0:03:54). Sergeant Romero asked if Plaintiff has ever acted in this manner, if Plaintiff has ever appeared intoxicated. (Def.’s Video Ex. G at 0:04:25–0:04:36) (“He appears to be intoxicated, the way he’s speaking and . . .”); see also (Pl.’s Video Ex. 7 at 0:04:25–0:04:36) (same). She responded he has worked shifts back-to-back opening and closing before without issues. (Def.’s Video Ex. G at 0:04:24– 0:05:10); see also (Pl.’s Video Ex. 7 at 0:04:24–0:05:10). Sergeant Romero asked if Plaintiff has ever required medical attention, to which the store manager responded she has never seen him dizzy or appear intoxicated and advised Sergeant Romero that Plaintiff was a Team Leader, a Department Manager. (Def.’s Video Ex. G at 0:05:11– 0:05:55); see also (Pl.’s Video Ex. 7 at 0:05:11–0:05:55). Miami Beach Fire Department was called to evaluate Plaintiff. (Def.’s Video Ex. C at 0:20:00). As Plaintiff was getting out of the back of the patrol vehicle, he exclaimed: Case 0:20-cv-61845-AHS Document 79 Entered on FLSD Docket 05/19/2022 Page 14 of 29 15 “Oh, shit!” (Def.’s Video Ex. C at 0:26:30). “What happened,” Officer Rosa asked. (Def.’s Video Ex. C at 0:26:31–0:26:32). “My knee dislocated,” Plaintiff responded. (Def.’s Video Ex. C at 0:26:33). “What do you mean? How does that happen,” Officer Rosa asked. (Def.’s Video Ex. C at 0:26:34). Plaintiff explained he got hurt playing football and his left knee pops out if it gets in the wrong direction. (Def.’s Video Ex. C at 0:26:35–0:26:41). “All right, they’re going to pop it back in,” Officer Rosa explained referring to Miami Beach Fire Department, which had arrived at the scene. (Def.’s Video Ex. C at 0:26:41–0:26:43). Officer Rosa removed the handcuffs for Plaintiff to be evaluated by the Miami Beach Fire Department. (Def.’s Video Ex. C at 0:26:58–0:27:31). Plaintiff explained his football injury to the first responders and Sergeant Romero, provided personal information, and had his blood pressure and vitals checked. (Def.’s Video Ex. C at 0:27:32–0:30:50); see also (Pl.’s Video Ex. 7 at 0:06:45–0:07:00). In the meantime, Officer Rosa returns to her patrol vehicle, continues the investigation from her patrol vehicle, and states: “This could have been so simple,” before signing off. (Def.’s Video Ex. C at 0:33:12–0:33:15). After being evaluated by Miami Beach Fire Department, Plaintiff appeared alert, declined being taken to the hospital, stated he had to be at work in an hour, and was embarrassed. See (Def. Stat. (DE [55-1]) at ¶ 30); (Pl. Stat. (DE [63]) at ¶ 30) (claiming there is no evidence to support Defendants’ statement “other than the report of Sergeant Romero, which is of questionable credibility”); (Def.’s Video Ex. G at 0:14:22–0:15:00) (“BP is a little high, he could have passed out . . . asymptomatic.”); see also (Pl.’s Video Ex. 7 at 0:14:22–0:15:00) (same). Sergeant Romero asked Plaintiff if this had ever happened to him before. (Def.’s Video Ex. G at 0:15:12–0:15:16); see also (Pl.’s Video Case 0:20-cv-61845-AHS Document 79 Entered on FLSD Docket 05/19/2022 Page 15 of 29 16 Ex. 7 at 0:15:12–0:15:16). Plaintiff responded that he had not passed out for five years, since high school, when he had a herniated disk in his back. (Def.’s Video Ex. G at 0:15:17–0:15:27). At this point, Sergeant Romero jokingly stated: “So you’re all messed up, your back is herniated, your knee is dislocated, and you feel dizzy.” (Def.’s Video Ex. G at 0:15:27–0:15:35). Plaintiff chuckled. (Def.’s Video Ex. G at 0:15:31); see also (Pl.’s Video Ex. 7 at 0:15:31). During this conversation with Sergeant Romero, Plaintiff stated the last thing he remembered before being pulled from his vehicle and placed in handcuffs is stopping his vehicle in the street to wait for a truck to move. See (Def. Stat. (DE [55-1]) at ¶ 28); (Pl. Stat. (DE [63]) at ¶ 28) (“There is no dispute as described in paragraph 28.”); (Def.’s Video Ex. G at 0:15:50–0:16:39); see also (Pl.’s Video Ex. 7 at 0:15:50–0:16:39). Without being prompted, Plaintiff admitted to Sergeant Romero he regularly smoked marijuana to calm himself down and had in fact smoked marijuana that evening but could not remember if he had consumed any alcohol that evening. (Def. Stat. (DE [55-1]) at ¶ 27); (Def.’s Video Ex. G at 0:16:41–0:17:06); see also (Pl.’s Video Ex. 7 at 0:16:41–0:17:06). Later a first responder advised Sergeant Romero that she treated the scratch on his back and his left elbow, which appeared to have an old wound that appeared agitated. (Def.’s Video Ex. H at 0:00:00–0:00:45). Sergeant Romero advised Plaintiff he was the supervisor and asked Plaintiff what he remembered. (Def.’s Video Ex. H at 0:00:46– 0:00:50). Plaintiff did not remember. (Def.’s Video Ex. H at 0:51:30–0:01:31). Sergeant Romero asked Plaintiff if anything hurt, to which Plaintiff responded: “No. No sir, nothing.” Id. at ¶ 29; (Pl. Stat. (DE [63]) at ¶ 29 (claiming he told Sergeant Romero he had back pain, without citation); (Def.’s Video Ex. H at 0:01:31–0:01:35) (but consistent with Case 0:20-cv-61845-AHS Document 79 Entered on FLSD Docket 05/19/2022 Page 16 of 29 17 Plaintiff’s earlier discussion with Sergeant Romero where the Sergeant joked with Plaintiff). Sergeant Romero pointed out the small wound on Plaintiff’s left elbow and the scratch on his back. (Def.’s Video Ex. H at 0:01:36–0:01:41). Plaintiff responded: “Until you pointed it out, I didn’t even feel it.” (Def.’s Video Ex. H at 0:01:42–0:01:45). Plaintiff answered questions regarding his contact information. (Def.’s Video Ex. H at 0:01:46– 0:03:14). During this conversation, Plaintiff claimed he came to as he hit the ground, the officers told him to turn around, and he was handcuffed. (Def.’s Video Ex. H at 0:03:15– 0:03:39); (Def.’s Video Ex. H at 0:04:46–0:04:09). Sergeant Romero asked if Plaintiff needed anything from him, Plaintiff responded “no, sir,” Plaintiff then apologized: “I’m sorry.” (Def.’s Video Ex. H at 0:04:11–0:04:20). Miami Beach Fire Department personnel advised the MBPD officers on scene that Plaintiff was most likely experiencing medical issues due to high blood pressure and sleep deprivation. See (Def. Stat. (DE [55-1]) at ¶ 30); (Pl. Stat. (DE [63]) at ¶ 30) (same); (Def.’s Video Ex. G at 0:11:11–0:11:54); (Def.’s Video Ex. G at 0:12:09–0:12:32). Following the medical evaluation, the MBPD officers made the decision to release Plaintiff from custody. See (Def. Stat. (DE [55-1]) at ¶ 30); (Pl. Stat. (DE [63]) at ¶ 30) (same). III. LEGAL STANDARD Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment “is appropriate only if ‘the movant shows that there is no genuine [dispute] as to any material fact and the movant is entitled to judgment as a matter of law.’” Tolan v. Cotton, 572 U.S. 650, 656–57 (2014) (per curiam) (quoting Fed. R. Civ. P. 56(a));5 see also Alabama v. North Carolina, 560 U.S. 330, 344 (2010). “By its very terms, this standard provides that 5 The 2010 Amendment to Rule 56(a) substituted the phrase “genuine dispute” for the former “‘genuine issue’ of any material fact.” Case 0:20-cv-61845-AHS Document 79 Entered on FLSD Docket 05/19/2022 Page 17 of 29 18 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 is “genuine” if a reasonable trier of fact, viewing all the record evidence, could rationally find in favor of the nonmoving party in light of his burden of proof. Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir. 2014). And a fact is “material” if, “under the applicable substantive law, it might affect the outcome of the case.” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259–60 (11th Cir. 2004). “[W]here the material facts are undisputed and do not support a reasonable inference in favor of the non-movant, summary judgment may properly be granted as a matter of law.” DA Realty Holdings, LLC v. Tenn. Land Consultants, 631 Fed. Appx. 817, 820 (11th Cir. 2015). The Court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. SEC v. Monterosso, 756 F.3d 1326, 1333 (11th Cir. 2014). However, to prevail on a motion for summary judgment, “the nonmoving party must offer more than a mere scintilla of evidence for its position; indeed, the nonmoving party must make a showing sufficient to permit the jury to reasonably find on its behalf.” Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1050 (11th Cir. 2015). “[T]his, however, does not mean that we are constrained to accept all the nonmovant’s factual characterizations and legal arguments.” Beal v. Paramount Pictures Corp., 20 F.3d 454, 459 (11th Cir. 1994). IV. DISCUSSION Defendants contend that they are entitled to summary judgment as to all counts asserted in Plaintiff’s Complaint. Officer Jackson and Officer Moreno contend that they are entitled to qualified immunity as to Plaintiff’s § 1983 excessive force claims because Case 0:20-cv-61845-AHS Document 79 Entered on FLSD Docket 05/19/2022 Page 18 of 29 19 any force used against Plaintiff was objectively reasonable under the circumstances and did not violate clearly established law. As to Plaintiff’s claims arising under Florida law, Officers Jackson and Moreno assert they are entitled to summary judgment as to Plaintiff’s battery claims because any force used against Plaintiff was reasonable and justified under the circumstances, and as to Plaintiff’s false imprisonment claims because any arrest or detention of Plaintiff was supported by probable cause. Further, the officers assert that they are entitled to summary judgment on Plaintiff’s state law claims based on the sovereign immunity afforded to them under Florida Statute § 768.28(9)(a), because there is no evidence that they acted in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Finally, the City asserts that it is entitled to summary judgment on Plaintiff’s state law claim for Respondeat Superior liability. Plaintiff opposes the instant motion (DE [55]), arguing the officers’ conduct was unreasonable in light of Plaintiff’s condition: asleep with his foot on the brake of the running Camry. Plaintiff insists he did not refuse to comply; instead, he was not able to comply with the officers’ requests. As such, Plaintiff argues probable cause did not exist so Plaintiff’s arrest was illegal and constitutes false imprisonment. Plaintiff insists Defendants are not entitled to summary judgment on Plaintiff’s state law claims because if the arrest of Plaintiff is deemed unlawful by this Court, then the force used by the officers was gratuitous, unnecessary, and unreasonable under the circumstances. Finally, Plaintiff argues the City is not entitled to summary judgment because Florida law permits plaintiffs to recover against a municipality for the tortious acts of its employees based upon the doctrine of respondeat superior. A. Excessive Force (Counts I and II) Qualified immunity protects government officials performing discretionary functions from civil liability unless their conduct violates clearly established statutory or Case 0:20-cv-61845-AHS Document 79 Entered on FLSD Docket 05/19/2022 Page 19 of 29 20 constitutional rights of which a reasonable person would have known. Pearson v. Callahan, 555 U.S. 223, 231 (2009); Hope v. Pelzer, 536 U.S. 730, 739 (2002). “An official asserting the affirmative defense of qualified immunity must initially establish that he was acting within his discretionary authority.” Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007). Once an officer has shown that he was acting within the scope of his discretionary authority, “the burden shifts to the plaintiff to show that qualified immunity is not appropriate.” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)); see Brown v. City of Huntsville, 608 F.3d 724, 734 & n.14 (11th Cir. 2010). When a claim of qualified immunity is asserted, a court must first answer the following question: “Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Plaintiff does not dispute that Officers Jackson and Moreno were performing a discretionary function in the course and scope of official duties. See Hill v. DeKalb Reg’l Youth Det Crt., 40 F.3d 1176, 1185 n.17 (11th Cir. 2004) (“A government official acts within his or her discretionary authority if objective circumstances compel the conclusion that challenged actions occurred in the performance of the official’s duties and within the scope of this authority.”). Once an officer has shown that he was acting within the scope of his discretionary authority, “the burden shifts to the plaintiff to show that qualified immunity is not appropriate.” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting Lee, 284 F.3d at 1194); see Brown, 608 F.3d at 734 & n.14. The Fourth Amendment’s freedom from unreasonable searches and seizures encompasses the right to be free from the use of excessive force in the course of an arrest. Lee, 284 F.3d at 1197. In excessive force cases, whether a plaintiff’s constitutional rights were violated is governed by the Fourth Amendment’s objective Case 0:20-cv-61845-AHS Document 79 Entered on FLSD Docket 05/19/2022 Page 20 of 29 21 reasonableness standard. Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008). Under that standard, a court judges the officer’s use of force “on a case-by-case basis from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Brown, 608 F.3d at 738 (quotation marks omitted). Whether an officer has used excessive force depends on “the facts and circumstances of each particular case,” including a non-exhaustive list of factors, such as (1) “the severity of the crime at issue”; (2) “whether the suspect poses an immediate threat to the safety of the officers or others”; and (3) “whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396 (1989). “Not every push or shove” violates the Fourth Amendment. Graham, 490 U.S. at 396. The Eleventh Circuit has ruled specifically that a police officer violates the Fourth Amendment if he uses gratuitous force against a suspect who is secure, not resisting, and not a safety threat to the officer or other officers. See, e.g., Hadley, 526 F.3d at 1330 (holding officer used excessive force when, in a single blow, he punched suspect who was handcuffed and was not struggling or resisting); Lee, 284 F.3d at 1199 (holding that an officer’s use of force after the plaintiff was “arrested, handcuffed, and completely secure, and after any danger to the arresting officer as well as any risk of flight had passed” was excessive). Conversely, the Eleventh Circuit has held that it may be reasonable for an officer to use force against a suspect who is resisting and not subdued. See, e.g., Mobley v. Palm Beach Cnty. Sheriff Dep’t, 783 F.3d 1347, 1351, 1355 (11th Cir. 2015) (concluding officers’ use of force in striking, kicking, and tasing suspect was not excessive where the suspect, though pinned on the ground, was “refusing to surrender his hands to be cuffed”); Crosby v. Monroe Cnty., 394 F.3d 1328, 1334-35 (11th Cir. 2004) (concluding officer’s use of force was not excessive where suspect, though lying face down on the ground, “was able to wrestle his hand loose and push [the officer’s] foot away”). Case 0:20-cv-61845-AHS Document 79 Entered on FLSD Docket 05/19/2022 Page 21 of 29 22 Here, carefully viewing the evidence and each video in the light most favorable to Plaintiff, a reasonable jury could find that at the time of the incident, (1) Plaintiff was not secured; (2) Plaintiff was not complying; (3) Plaintiff was moving, resisting, and otherwise posing a threat to Officers Rosa, Moreno, and Jackson; and (4) Officers Jackson and Moreno had need to use force to remove Plaintiff from the moving vehicle. The Graham factors do not weigh in Plaintiff’s favor. Defendants argue that Plaintiff was verbally unintelligible and physically non- compliant throughout the incident, and therefore a reasonable officer in Officer Jackson’s or Officer Moreno’s position could believe Plaintiff was a safety threat. This Court finds the video evidence supports this position. On the other hand, Plaintiff argues the officers created the exigent circumstance leading to Plaintiff’s attention. Plaintiff claims Officer Jackson’s actions were not “heroic;” he merely reached into a car that began to roll, without any resistance from Plaintiff, and put the Camry in park. (Resp. (DE [62]) at 3). However, Plaintiff’s contention that there were no other vehicles or any pedestrians near the Camry, is directly contradicted by his argument that the officers, specifically Officer Rosa, neglected the possibility that Plaintiff was having a medical emergency. Id. This argument in effect admits Plaintiff posed a danger to himself and others. In any event, the video evidence of the incident, taken in the light most favorable to Plaintiff, reveals the officers had no choice but to forcibly remove Plaintiff from the Camry and secure him with handcuffs. Accordingly, this Court finds the officers’ conduct did not violate a federal constitutional right. B. False Imprisonment (Counts III and IV) “[U]nder Florida law, false arrest and false imprisonment are different labels for the same cause of action.” Rankin v. Evans, 133 F.3d 1425, 1430 n.5 (11th Cir. 1998). “False arrest and false imprisonment are closely related, but false imprisonment is a broader common law tort; false arrest is only one of several methods of committing false Case 0:20-cv-61845-AHS Document 79 Entered on FLSD Docket 05/19/2022 Page 22 of 29 23 imprisonment.” Mathis v. Coats, 24 So. 3d 1284, 1289 (Fla. 2nd DCA 2010). “Indeed, a person improperly detained pursuant to a lawful arrest may have the right to bring an action for false imprisonment.” Id. “[W]hen an officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen a court [may] conclude that a ‘seizure’ has occurred.” Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968). A claim for false imprisonment under § 1983 accrues “when either the seizure ends or the plaintiff is held pursuant to legal process.” Williams v. Aguirre, 965 F.3d 1147, 1158 (11th Cir. 2020). “‘False imprisonment is the unlawful restraint of a person against his will, the gist of which action is the unlawful detention of the plaintiff and deprivation of his liberty.’” Archer v. City of Winter Haven, 846 Fed. Appx. 759, 763 (11th Cir. 2021) (quoting Johnson v. Weiner, 155 Fla. 169, 171 (Fla. 1944). “To state a cause of action for false imprisonment, the plaintiff must establish: ‘1) the unlawful detention and deprivation of liberty of a person 2) against that person’s will 3) without legal authority or ‘color of authority’ . . . 4) which is unreasonable and unwarranted under the circumstances.” Id. (citations omitted). “In a false imprisonment action, the plaintiff is required only to ‘establish imprisonment contrary to his will and the unlawfulness of the detention.’” Johnson v. Barnes & Noble Booksellers, Inc., 437 F.3d 1112, 1116 (11th Cir. 2006) (citations omitted). “The existence of probable cause constitutes an affirmative defense to the claims of false arrest and imprisonment under Florida law.” Rankin v. Evans, 133 F.3d 1425, 1436 (11th Cir. 1998); see also (Ans. (DE [13]) at 8, 10). “In determining whether probable cause existed, we consider whether the officer’s actions were ‘objectively reasonable’ based on the ‘totality of the circumstances.’” Williams v. City of Homestead, 206 Fed. Case 0:20-cv-61845-AHS Document 79 Entered on FLSD Docket 05/19/2022 Page 23 of 29 24 Appx. 886, 888 (11th Cir. 2006) (quoting Rankin, 133 F.3d at 1435). To establish probable cause, a defendant must show “the facts and circumstances within the officer’s knowledge” were sufficient to cause a reasonably prudent person to believe the suspect was guilty of committing a crime. Holland v. City of Auburn, 657 Fed. Appx. 899, 903 (11th Cir. 2016). “The probable cause standard is objective, requiring only ‘that an arrest be objectively reasonable under the totality of the circumstances.’” Id. (quoting Bailey v. Bd. of Cty. Comm’rs, 956 F.2d 1112, 1119 (11th Cir. 1992). Under federal and state law, “the validity of an arrest does not turn on the offense announced by the officer at the time of the arrest.” Lee v. Ferraro, 284 F.3d 1188, 1196 (11th Cir. 2002). “[I]f there is a valid charge for which a person could have been arrested, probable cause exists.” Daniel v. Village of Royal Palm Beach, 889 So. 2d 988, 991 (Fla. 4th DCA 2004) (emphasis added). “[S]o long as probable cause existed to arrest the plaintiff for any offense, the arrest and detention are valid even if probable cause was lacking as to some offenses, or even all announced charges.” Whittington v. Town of Surfside, 490 F. Supp. 2d 1239, 1251 (S.D. Fla. 2007) (citing Lee, 284 F.3d at 1196). Even though Plaintiff was ultimately not charged, Defendants argue probable cause existed “to detain and arrest Plaintiff for multiple criminal offenses at the time of his encounter with the Defendant Officers, including but not limited to: (1) Failure to Obey a Lawful Order of a Police Officer in violation of Fla. Stat. § 316.072(3); (2) Resisting an officer without violence in violation of Fla. Stat. § 843.02; and (3) driving under the influence in violation of Fla. Stat. § 316.193(1)(a).” (Mot. (DE [55]) at 12). This Court agrees. Case 0:20-cv-61845-AHS Document 79 Entered on FLSD Docket 05/19/2022 Page 24 of 29 25 Section 316.072(3), Florida Statutes makes it a misdemeanor “for any person willfully to fail or refuse to comply with any lawful order or direction of any law enforcement officer.” And Florida law authorizes arrest for knowingly obstructing an officer in the performance of his duties, including by refusing to obey a police officer’s lawful command. See Fla. Stat. § 843.02. In addition to failing to comply with Officers Rosa and Moreno’s orders to stop the car, Plaintiff then refused to exit his vehicle despite almost thirty loud, clear, verbal orders to do so. Finally, it is not undisputed whether Plaintiff was under the influence at the time of the incident as Plaintiff admitted to Sergeant Romero that he had smoked marijuana earlier in the evening.6 Accordingly, there was probable cause to arrest Plaintiff. Additionally, Plaintiff admitted he could not remember if he had any alcohol that evening. On this basis, and based upon his behavior and admissions, there existed probable cause to arrest Plaintiff for driving under the influence of an intoxicating substance to the extent that his or her normal facilities are impaired, in violation of section 316.193(1)(a), Florida Statutes. Plaintiff argues the Defendants did not have probable cause to arrest Plaintiff for driving under the influence at any time during the incident. Plaintiff claims the officers did not smell alcohol, though this is controverted by the video evidence of Sergeant Romero’s bodycam footage,7 Plaintiff did not have slurred speech pursuant to the EMT’s report, and the officers could not competently perform a roadside DUI investigation to confirm. Plaintiff critiques the officers’ competence in conducting the roadside DUI investigation, refers to Officer Rosa’s insistence the roadside DUI investigation be conducted correctly, and infers the MBPD officers’ discussion regarding the roadside DUI investigation 6 See (Def.’s Video Ex. H at 0:16:41-0:16:54); see also (Pl.’s Video Ex. 7 at 0:16:41-0:16:54). 7 See (Def.’s Video Ex. H at 0:00:46-0:00:58); see also (Pl.’s Video Ex. 7 at 0:00:46-0:00:58). Case 0:20-cv-61845-AHS Document 79 Entered on FLSD Docket 05/19/2022 Page 25 of 29 26 indicated the MBPD officers just wanted to charge Plaintiff with a crime. This Court does not agree with Plaintiff’s reframing of facts regarding Plaintiff’s demeanor at the time of the stop. While Plaintiff’s speech and demeanor was much improved by the time he was evaluated by the Miami Beach Fire Department, nearly twenty minutes had passed from the initial stop, removal from the Camry, and detention. At that point, Plaintiff was admittedly more alert and responsive. However, in the few minutes Officers Rosa, Moreno, and Jackson had to evaluate the scene, assess the risks, and determine the proper course of action, Plaintiff was, admittedly,8 non-responsive and non-compliant. The undisputed facts borne by the video evidence in this case conclusively establish that probable cause existed to arrest Plaintiff here. The video evidence shows the Camry was stopped, not parked, in the middle of the road in the proper travel lane. Plaintiff was unresponsive to Officer Rosa’s initial approach, the patrol vehicle’s flashing lights, and the honking of the patrol vehicle’s horn. When Officers Rosa and Moreno approached the vehicle, Plaintiff did not comply with their loud and clear orders to stop the Camry. Once Officer Jackson intervened to put the Camry’s transmission in park, Plaintiff again failed to comply to numerous, loud, verbal orders to get out of the Camry. Instead of complying with any of the MBPD officers’ repeated instructions, the video evidence shows Plaintiff struggled with the officers, resisted their attempts to remove him from the Camry, and did not give any indication he would comply with their orders. Probable cause is an affirmative defense to a claim of false imprisonment. As a result, Plaintiff cannot show that his detention was “unlawful” or that the MBPD officers 8 See (Def.’s Video Ex. H at 0:15:53-0:16:57); see also (Pl.’s Video Ex. 7 at 0:15:53-0:16:57). Case 0:20-cv-61845-AHS Document 79 Entered on FLSD Docket 05/19/2022 Page 26 of 29 27 conducted it “without legal authority.” Harder, 174 So. 3d at 530. Accordingly, Plaintiff’s false imprisonment claim fails as a matter of law. C. State Tort Battery (Counts V and VI) Under Florida law, force used by a police officer during an arrest is transformed into a battery only where the force used was clearly excessive. See Davis v. Williams, 451 F.3d 759, 768 (11th Cir. 2006) (citing City of Miami v. Sanders, 672 So. 2d 46, 47 (Fla. 3d DCA 1996)). And to determine whether the force used was excessive, Florida courts analyze whether the amount of force used was reasonable under the circumstances. Sanders, 672 So. 2d at 47. In light of the conclusion above, that the officers did not use excessive force in securing Plaintiff, this Court concludes Plaintiff’s state law battery claims against Officers Jackson and Moreno likewise fail. D. Respondeat Superior Liability (Count VII) In Monell v. Department of Social Services, 436 U.S. 658, (1978), the Supreme Court held that municipalities may not be held liable under 42 U.S.C. § 1983 on a theory of respondeat superior. Municipalities instead can only be held liable under section 1983 for the execution of a governmental policy or custom. See Laster v. City of Tampa Police Dep’t., 575 Fed. Appx. 869, 872 (11th Cir. 2014). “A plaintiff . . . has two methods by which to establish a county’s policy: identify either (1) an officially promulgated county policy or (2) an unofficial custom or practice of the county shown through the repeated acts of a final policymaker for the county.” Grech v. Clayton Cnty., Ga., 335 F.3d 1326, 1329 (11th Cir. 2003) (en banc). In Count VII, Plaintiff alleges, in the alternative, that “the acts and omissions of the Defendants Jackson and/or Moreno were not committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or Case 0:20-cv-61845-AHS Document 79 Entered on FLSD Docket 05/19/2022 Page 27 of 29 28 property, and therefore the City is liable for those acts and omissions which resulted in grievous physical and emotional harm to the Plaintiff on December 10, 2019.” (Compl. (DE [1]) ¶ 56). Plaintiff argues the City is not entitled to summary judgment because a jury could reasonably find the officers were negligent in not checking on Plaintiff’s well- being before opening the doors of the Camry and startling him; in incompetently using force and arresting Plaintiff; and as a result, Plaintiff would be entitled to seek redress from the officers’ employer pursuant to respondeat superior liability. The City argues Plaintiff has not plead any allegations regarding a policy or custom of the City that would suffice to proceed on a section 1983 claim against the City. This Court agrees. Even if Plaintiff had sufficiently stated a claim against the City, the officers’ use of force was objectively reasonable under the circumstances. Furthermore, probable cause existed at the time of the arrest to bar such claims. Accordingly, this claim fails as a matter of law. V. CONCLUSION At the time of this incident, Plaintiff Jamie Senko was twenty-nine years old and a father of a seven-year-old boy. This Court finds Plaintiff to be a responsible, hard-working young man, willing to forgo sleep, despite working until close, to arrive to work as scheduled less than five hours later. This Court, however, cannot find the MBPD officers acted unreasonably under the circumstances. An officer is not meant to be clairvoyant when approaching the scene of an incident; instead, an officer is tasked with making split- second decisions to ensure the safety of the public and fellow officers. Here, the Court carefully reviewed each video. This would be the exact evidence offered at trial and argued at the directed verdict stage. Counsel for each side have very ably represented their clients, but liability here is a factor of Plaintiff’s employment conditions rather than Defendants’ conduct. Case 0:20-cv-61845-AHS Document 79 Entered on FLSD Docket 05/19/2022 Page 28 of 29 29 Accordingly, it is hereby ORDERED AND ADJUDGED that Defendants’ Motion for Summary Judgment (DE [55]) is GRANTED. In accordance with Federal Rule of Civil Procedure 58, judgment for DEFENDANTS COREY J. JACKSON, DANIELLA MORENO, and THE CITY OF MIAMI BEACH will be entered separately. The Clerk of Court is directed to CLOSE this case and DENY AS MOOT any pending motions. Furthermore, all deadlines are TERMINATED, and all hearings are CANCELLED. DONE AND ORDERED in Chambers, Fort Lauderdale, Florida, this 18th day of May 2022. Copies furnished to counsel of record via CM/ECF Case 0:20-cv-61845-AHS Document 79 Entered on FLSD Docket 05/19/2022 Page 29 of 29 RAAGSINGH UNITED STATES DISTRICT JUDGE