Pozdol v. City of Miami
Pozdol v. City of Miami
Opinion of the Court
ORDER ON MOTIONS TO DISMISS AND MOTION TO STAY
THIS MATTER comes before the Court upon Defendant City of Miami’s, Tomas Regalado’s, and Miguel Exposito’s Motion to Dismiss First Amended Complaint and Motion to Strike (DE 18), filed September 3, 2013; Defendant Rafael Borroto’s Motion to Dismiss First Amended Complaint and Motion to Strike (DE 30), filed November 4, 2013; and Defendants’ Motion to Stay Proceedings Pending Resolution of Related State Criminal and Administrative Investigations (DE 32), filed November 12, 2013. The Court has been fully briefed as to all motions.
I. BACKGROUND
This action arises from the alleged shooting of Drew Randolph Pozdol by a City of Miami police officer, Sergeant Rafael Borroto. Plaintiffs Amended Complaint (the “Complaint”) (DE 15) alleges that, in the early morning hours of August 21, 2011, Pozdol was walking down a side
II. LEGAL STANDARD ON MOTION TO DISMISS
Rule 8 requires that a complaint include a “short and plain statement” demonstrating that the claimant is entitled to relief. Fed. R. Civ. P. 8. To survive a Rule 12(b)(6) motion, a complaint must include “enough facts to state a claim to relief that is plausible on its face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663, 129 S.Ct. 1937, 173 L.Ed.2d 868, (2009). As a corollary, allegations absent supporting facts are not entitled to this presumption of veracity. Id. at 681, 129 S.Ct. 1937.
When evaluating a motion to dismiss, the Court must take all of the wellpled factual allegations as true. Iqbal, 556 U.S. at 664, 129 S.Ct. 1937. However, the Court’s duty to accept the factual allegations in the complaint as true does not require it to ignore specific factual details “in favor of general or conclusory allegations.” Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1205-06 (11th Cir. 2007). And, where documents considered part of a pleading “contradict the general and conclusory allegations” of the pleading, the document governs.
III. DISCUSSION
The Court will address Defendant Bor-roto’s Motion to Dismiss first, as his actions lie at the core of Plaintiffs claims against all Defendants. The Court will then address the City of Miami’s (the “City”), Tomas Regalado’s, and Miguel Expositor Motion to Dismiss, as well as Defendants’ Motion to Stay.
A. Sergeant Rafael Borroto’s Motion to Dismiss and Motion to Strike
Defendant Borroto moves to dismiss Count III to the extent that Count III
1.Official Capacity Claim
“Official-capacity suits ... generally represent only another way of pleading an action against an entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985) (quoting Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)). Thus, the “official capacity” claim in Count III against Defendant Bor-roto is the functional equivalent of the claim against the City in Count I, and is, therefore, redundant. See Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991). Accordingly, Count III, to the extent that it asserts an “official capacity” claim against Defendant Borroto, is dismissed.
2. References to “other federal laws”
The Complaint asserts that Count III is brought not only pursuant to 42 U.S.C. § 1983, but pursuant to “other federal laws” as well. (DE 15, ¶ 8). However, section 1983 is the exclusive federal remedy for violations of rights guaranteed in 42 U.S.C. § 1981 by state governmental units. Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989). Accordingly, Count III, to the extent that it relies on “other federal laws,” is dismissed.
3. Violation of Rights Under the Fifth and Fourteenth Amendments
Count III asserts a claim under section 1983 for violation of decedent’s constitutional rights under, inter alia, the Fourth, Fifth, and Fourteenth Amendments. (DE 15, ¶¶ 8-9). The Fifth Amendment is not implicated by the facts alleged in the Complaint, and the Supreme Court has held that section 1983 actions for excessive force are to be analyzed under the Fourth Amendment, rather than the Fourteenth. See Graham v. Connor, 490 U.S. 386, 388, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Accordingly, Count III, to the extent that it is based upon alleged violations of decedent’s rights under the Fifth and Fourteenth Amendments, is dismissed.
B. City of Miami’s, Tomas Regala-do’s, and Miguel Exposito’s Motion to Dismiss and Motion to Strike
Defendants, City of Miami (the “City”), Tomas Regalado, and Miguel Expósito, initially sought dismissal of both Counts I and II, citing a failure to state a cause of action upon which relief can be granted. However, upon the City’s withdrawal of its argument that Plaintiff failed to state a cause of action in Count I,
1. Mayor Tomas Regalado
Defendant Regalado moves to dismiss Count II for failure to state a cause of action and, alternatively, on the basis of his asserted qualified immunity from civil liability. Defendant Regalado argues that he has no statutory, constitutional, or any other responsibility under the law for the conduct of the Miami Police Department, and, accordingly, that Plaintiff is unable to state a cause of action against him which demonstrates plausible entitlement to relief.
Plaintiff concedes that Defendant Rega-lado did not personally participate in the constitutional deprivation at issue in this action. Instead, Plaintiff seeks to hold Defendant Regalado liable as Defendant Borroto’s supervisor. The Complaint alleges, inter alia, that Defendant Regalado: 1) was “responsible for implementing the rules and regulations in regard to hiring, screening, training, supervising, controlling, assigning, and disciplining officers of the City,” 2) “expressly or impliedly acknowledged and assented to the failure to train, supervise, control, and/or otherwise screen officers,” 3) “through [his] deliberate indifference, failed to ensure that police officers of the City did not violate the constitutional and statutory rights of citizens of ... Florida,” and 3) “despite notice and knowledge ... as to the dangerous propensities of [the City’s] police officers, failed to ... properly train said officers or otherwise intentionally failed to protect the public ... from danger.” (DE 15, ¶¶ 72, 73, 75, 77).
- Defendant’s argument relies primarily upon several cases from this district in which the court determined that, with respect to Miami-Dade County (the “County”), the county manager — not the may- or — is in charge of overseeing the police department.
The City Charter establishes the powers and duties of City officials. See generally Miami, Fla. Charter. The City Charter charges the city manager with seeing that the laws are enforced and with exercising control over all administrative departments established by the City Charter. Id. at Part I.A. § 16(a), (c). The police force is part of the Department of Public Safety, an administrative department. Id. at Part I.A. §§ 18, 24. While the mayor appoints the city manager, and has the authority to remove a city manager, the Charter expressly places the ultimate control of the City’s administrative departments — and the police force — in the city manager’s hands. Accordingly, Plaintiff is unable to establish a causal connection between the alleged constitutional deprivation at issue in this action and Defendant Regalado, and Count II, to the extent that it states a claim for supervisory liability against Defendant Regalado, is dismissed.
2. Former Chief of Police Miguel Expósito
Defendant Expósito moves to dismiss Count II for failure to state a cause of action and, alternatively, on the basis of his asserted qualified immunity from civil liability. As the chief of police, Defendant Expósito had immediate direction and control of the police force.
Government officials are entitled to qualified immunity from civil liability in their individual capacities when performing discretionary functions of their office “insofar as their conduct does not violate clearly established statutory or constitutional rights-” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Thus, qualified immunity protects “all but the plainly incompetent or one who is knowingly violating federal law.”
a. Whether Defendant Expósito Violated Decedent’s Constitutional Right
Plaintiff concedes that Defendant Expósito did not personally participate in the constitutional deprivation at issue in this action. Indeed, Plaintiff seeks to hold Defendant Expósito liable for the acts of a subordinate, namely, Defendant Borroto. It is well-established that supervisors are not subject to section 1983 liability under theories of respondeat superior or vicarious liability for the actions of their subordinates. See Hartley v. Parnell, 193 F.3d 1263, 1269 (11th Cir. 1999). However, the Eleventh Circuit has held that supervisors who are not alleged to have personally participated in the constitutional violation which gave rise to the section 1983 action may nonetheless be liable for a constitutional deprivation “when there is a causal connection between the actions of a supervising official and the alleged constitutional deprivation.” Cottone v. Jenne, 326 F.3d 1352, 1360-61 (11th Cir. 2003).
The allegations of the Complaint which concern Defendant Exposito’s supervision of Miami Police Department officers’ conduct are largely conclusory. The Complaint alleges that Defendant Expositor 1) was “responsible for implementing the rules and regulations in regard to hiring, screening, training, supervising, controlling, assigning, and disciplining officers of the City,” 2) “expressly or impliedly acknowledged and assented to the failure to train, supervise, control, and/or otherwise screen officers,” 3) “through [his] deliberate indifference, failed to ensure that police officers of the City did not violate the constitutional and statutory rights of citizens of ... Florida,” and 4) “despite notice and knowledge ... as to the dangerous propensities of [the City’s] police officers, failed to ... properly train said officers ór otherwise intentionally failed to protect the public ... from danger.” (DE 15, ¶¶ 72, 73, 75, 77). Standing alone, these allegations are insufficient to establish a history of widespread abuse which put Defendant Expósito on notice of a need to re-train officers in the proper use of deadly force to prevent officers’ misuse of deadly force. However, attached to Plaintiffs Response in Opposition to Defendants’ Motion to Dismiss, (DE 21), is a letter from the Civil Rights Division of the U.S. Department of Justice (the “DoJ”), (DE 21-1),
The DoJ letter reports the findings of a DoJ investigation into the use of deadly force by the Miami Police Department from 2008 to 2011,
The Court finds that the history of widespread use of excessive force by the Miami Police Department during the three year period preceding decedent’s shooting was sufficient to put Defendant Expósito on notice of widespread constitutional deprivations, which were not corrected. Moreover, the Court finds that the Complaint’s allegations, supported by the findings of the Department of Justice investigation and the Miami Police Department’s own finding of a 13% unjustified shooting rate for the 2008 to 2011 period, sufficiently pled the existence of a causal connection between Defendant Exposito’s failure to act and decedent’s constitutional deprivation. As the Court has determined, Defendant Expósito was put on notice and failed to act, it must next determine whether the right that he failed to protect was clearly established at the time of the challenged conduct. See al-Kidd, 131 S.Ct. at 2080.
b. Whether Decedent’s Right Was Clearly Established
At the time of decedent’s killing, the law clearly established that supervisory officials could be held liable under section 1983 for their subordinates’ constitutional violations where a causal connection exists between the supervisor’s failure to act and the constitutional violations. Cottone, 326 F.3d at 1360-61. Moreover, the Supreme Court determined long ago that “a police officer may not seize an unarmed, nondan-gerous suspect by shooting him dead.” Tennessee v. Garner, 471 U.S. 1, 11, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). Having found that Plaintiff has met her burden of alleging sufficient facts to defeat Defendant Borroto’s claim to qualified immunity, Defendants’ Motion to Dismiss Count II, to the extent that it asserts qualified immunity from civil liability and that Plaintiff failed to state a cause of action demonstrating entitlement to relief, is denied.
3. Official Capacity Claims Against Mayor Regalado and Former Chief of Police Expósito
The Court has already determined that “official capacity” claims against officers of a municipality are redundant in an action in which the municipality is also a defendant. See supra Part III.A.1. Accordingly, Count II, to the extent that it asserts claims against Defendants Regalado and Expósito in their “official capacities,” is dismissed.
The Court has already determined that the Fifth and Fourteenth Amendments are not implicated by the Complaint, as section 1983 actions for excessive force are properly analyzed under the Fourth Amendment. See supra Part III.A.2. Accordingly, Counts I and II, to the extent that they are based upon alleged violations of the Fifth and Fourteenth Amendments, are dismissed.
C. Defendants’ Motion to Stay
Defendants jointly move to stay this civil proceeding pending the resolution of related state criminal and administrative investigations. Defendants argue that a stay is appropriate because “all reports, documents, grievances, and information created or obtained in connection with the subject shooting are protected from disclosure pursuant to applicable state and federal law ...” due to an ongoing criminal investigation into the shooting by the Miami Police Department and the State Attorney’s Office. Defendants claim that: 1) they will be unable to respond to Plaintiffs discovery requests with respect to any documents created in response to the incident; 2) they may be placed at a disadvantage in their ability to defend this action because Defendant Borroto may rely on his Fifth Amendment privilege against self-incrimination and decline to discuss anything related to the shooting; and 3) absent a stay, Defendant Borroto may be rendered unable to assert his entitlement to qualified immunity.
The mere existence of parallel criminal and civil proceedings does not compel a stay of the civil proceeding. United States v. Lot 5, Fox Grove, Alachua Cnty., Fla., 23 F.3d 359, 364 (11th Cir. 1994). “[A] court must stay a civil proceeding pending resolution of a related criminal prosecution only when ‘special circumstances’ so require in the ‘interests of justice.’ ” Id. (internal citation omitted). And, “[a] court must deny a stay so long as the privilege’s invocation does not compel an adverse judgment against the claimant.” Id. Thus, a court must consider whether, “as a result of invoking the privilege, the defendant faces certain loss of the civil proceeding on summary judgment if the civil proceeding were to continue.” Court-Appointed Receiver of Lancer Mgmt. Grp. LLC v. Lauer, No. 05-60584, 2009 WL 800144, at *2 (S.D.Fla. Mar. 25, 2009). A mere “blanket assertion of the privilege is an inadequate basis for the issuance of a stay.” Lot 5, Fox Grove, 23 F.3d at 364.
The existence of hypothetical hardships Defendants may be subject to in the event that Defendant Borroto chooses to assert the privilege is insufficient to persuade the Court that a stay is warranted. Moreover, the Court finds Defendants’ argument, that Defendant Borroto will effectively lose his ability to assert qualified immunity if a stay is denied, to be spurious. Defendant Borroto’s Motion to Dismiss, (DE 30), was filed — by the same counsel who filed the Motion to Stay, (DE 32) — before the Motion to Stay, and nowhere in the Motion to Dismiss does Defendant Borroto assert entitlement to qualified immunity. Additionally, Defendants have failed to show that, if Defendant Borroto were to invoke the privilege, Defendant Borroto’s invocation of the privilege would result in Defendants’ certain loss by automatic summary judgment, and not merely the loss of their “most effective defense.” See Pervis v. State Farm Fire & Cas. Co., 901 F.2d 944,
IV. CONCLUSION
Accordingly, after careful consideration and the Court being otherwise fully advised, it is ORDERED, ADJUDGED, and DECREED that Defendant City of Miami’s, Tomas Regalado’s, and Miguel Expo-site’s Motion to Dismiss First Amended Complaint and Motion to Strike (DE 18) be, and the same is, hereby GRANTED IN PART as follows:
1. Counts I and II, to the extent that they are based upon alleged violations of the Fifth and Fourteenth Amendments, are DISMISSED.
2. Count II, to the extent that it states a claim for supervisory liability against Defendant Regalado, is DISMISSED.
3. Count II, to the extent that it asserts a claim against Defendant Re-galado in his “official capacity,” is DISMISSED.
4. Count II, to the extent that it asserts a claim against Defendant Ex-pósito in his “official capacity,” is DISMISSED without prejudice.
IT IS FURTHER ORDERED AND ADJUDGED that Defendant Rafael Bor-roto’s Motion to Dismiss First Amended Complaint and Motion to Strike (DE 30) be, and the same is, hereby GRANTED as follows:
1. Count III, to the extent that it asserts an “official capacity” claim against Defendant Borroto, is DISMISSED without prejudice.
2. Count III, to the extent that it asserts liability based on “other federal laws,” is DISMISSED.
3. Count III, to the extent that it is based upon alleged violations of decedent’s rights under the Fifth and Fourteenth Amendments, is DISMISSED.
IT IS FURTHER ORDERED AND ADJUDGED that Defendants’ Motion to Stay Proceedings Pending Resolution of Related State Criminal and Administrative Investigations (DE 32) be, and the same is, hereby DENIED without prejudice to be re-raised by any party should circumstances so change as to make a stay necessary.
IT IS FURTHER ORDERED AND ADJUDGED that Plaintiffs Motion for Leave to File Surreply to Defendants’ Motion to Dismiss (DE 26) be, and the same is, hereby GRANTED. As noted, the Court has considered Plaintiffs Surreply to Defendants’ Motion to Dismiss (DE 26-2) and the same is ACCEPTED.
IT IS FURTHER ORDERED AND ADJUDGED that Plaintiffs Motion for Leave to File Surreply to Defendants’ Motion to Stay (DE 39) be, and the same is, hereby GRANTED. As noted, the Court has considered Plaintiffs Surreply to Defendants’ Motion to Stay (DE 39-2) and the same is ACCEPTED.
IT IS FURTHER ORDERED AND ADJUDGED that Plaintiff, should she choose to file an amended complaint, shall file an amended complaint within twenty (20) days of the date of this Order.
. With respect to Defendant City of Miami's, Tomas Regalado's, and Miguel Exposito's Motion to Dismiss, the Court has also considered Plaintiff's Response in Opposition (DE 21), filed on September 27, 2013, Defendants' Reply (DE 24), filed on October 9, 2013, and Plaintiff's Surreply (DE 26-2), filed on October 15, 2013; with respect to Defendant Bor-roto's Motion to Dismiss, the Court has also considered Plaintiff's Response in Opposition (DE 31), filed on November 12, 2013, and Defendant’s Reply (DE 33), filed on November 15, 2013; and, with respect to Defendants’ Motion to Stay, the Court has also considered Plaintiff’s Response in Opposition (DE 36), filed on December 10, 2013, Defendants’ Reply (DE 37), filed on December 20, 2013, and Plaintiff’s Surreply (DE 39-2), filed on December 24, 2013.
. Furthermore, “where the plaintiff refers to certain documents in the complaint and those documents are central to the plaintiffs claim, then the Court may consider the documents part of the pleadings for purposes of Rule 12(b)(6) dismissal, and the defendant's attaching such documents to the motion to dismiss will not require conversion of the motion into a motion for summary judgment.” Brooks v. Blue Cross and Blue Shield of FL, Inc., 116 F.3d 1364, 1369 (11th Cir. 1997).
. Defendant Borroto’s Motion to Dismiss actually seeks to strike any reference to "other federal laws.” (See DE 30 at 4).
. (See DE 24 at 3).
. The Court need not consider Defendant Re-galado’s claim to qualified immunity. See infra note 9.
. The Court will consider Defendant Expositor claim to qualified immunity in conjunction with his claim that Plaintiff has failed to state a cause of action.
. To establish a defense of qualified immunity a Defendant must show, as a preliminary matter, that the challenged conduct forms a discretionary duty of his office. See infra discussion of qualified immunity in Part. III.B.2. Accordingly, if Defendant is correct in his assertion that he has no responsibility under the law for the conduct of the Miami Police Department, he is not entitled to qualified immunity from suit, but, rather, Plaintiff is simply unable to state a cognizable claim for relief against him.
.As Defendants failed to properly raise this argument until their Reply, (DE 21), the Court has also considered Plaintiff’s Surreply, (DE 26-2), to Defendants’ Motion to Dismiss.
. As the Court has determined that Plaintiff is unable to state a claim against Defendant Regalado for supervisory liability under 42 U.S.C. § 1983, it need not address his asserted claim to qualified immunity.
. Indeed, the Charter states that, ”[t]he chief of police ... shall have the right and power to suspend any of the officers and employees in [his] respective division who may be under [his] management and control for incompetence, neglect of duty, immorality, drunkenness, failure to obey orders given by proper authority, or for any other just and reasonable cause” and "[t]he chief of police shall have the immediate direction and control of the police force.” Miami, Fla. Charter Part I.A. §§ 24(a), 25.
. The Court notes that Defendant failed to claim that he was engaged in a discretionary duly, but Plaintiff does not argue that Defendant was not engaged in a discretionary duty. (DE 21, ¶ 42).
. The doctrine of qualified immunity “balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from ... liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009).
. U.S. Department of Justice, Civil Rights Division, Re: Investigation of City of Miami Police Department, July 9, 2013, available at http://www.justice.gov/crt/about/spl/ documents/miami_fmdings_7-9-l 3 .pdf.
. The letter is a matter of public record, of which the Court may take judicial notice and which the Court may consider when deciding a motion to dismiss. See Halmos v. Bomardier Aerospace Corp., 404 Fed.Appx. 376, 377 (11th Cir. 2010) (citing Tellabs, Inc. v. Makor Issues Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007)).
.The investigation was undertaken pursuant to the Violent Crime Control and Law Enforcement Act of 1994. 42 U.S.C. § 14141.
. The Miami Police Department had only completed investigations of twenty-four of the thirty-three shootings, of which it found three, or 13%, of the shootings were unjustified.
Reference
- Full Case Name
- Cathlyn Ann POZDOL, as Personal Representative of the Estate of Drew Randolph Pozdol v. CITY OF MIAMI, Tomas Regalado, individually and in his capacity as Mayor of the City of Miami, Miguel A. Exposito, individually and in his capacity as the former Chief of Police for the City of Miami, and Rafael Borroto, individually and in his capacity as a City of Miami Police Officer
- Cited By
- 4 cases
- Status
- Published