UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

JOEL A. MONTILLA and J. G. P.,

Plaintiffs,

v. Case No: 6:19-cv-933-Orl-31GJK

RUSS GIBSON and JOHN STUBBS,

Defendants.

ORDER This matter is before the Court on Defendant’s Motion to Dismiss (Doc. 24) Plaintiffs’ First Amended Complaint (Doc. 20-1). Plaintiff opposes the Motion (Doc. 25). In their First Amended Complaint, Plaintiffs allege that on May 20, 2017, Defendant John Stubbs, an Osceola County deputy sheriff, shot and killed Carlos J. Garcia Petrovich (“Petrovich”) at a gas station in Okeechobee, Florida. Plaintiffs allege that Petrovich was unarmed and compliant with Stubbs’ instructions, and that an independent eye witness stated that Stubbs did “not have any reason to shoot” Petrovich. Doc. 20-1 ¶ 14-16. Accordingly, Plaintiffs assert a § 1983 claim that Stubbs violated Petrovich’s constitutional right to be free from the use of excessive force under the Fourth and Fourteenth Amendments (Count I). Plaintiffs also assert a wrongful death claim under Florida’s Wrongful Death Act (Count II). By his Motion, Stubbs contends that these allegations are insufficient to assert a viable claim under the standard set by Bell Atlantic Corp. v Twombly,

(2007). Specifically, Defendant argues that the eye witness account may have admissibility problems at trial. But at this stage of the proceedings, Plaintiffs’ factual allegations must be accepted as true and reasonable inferences determined in Plaintiffs’ favor. See, e.g., Jackson v. Okaloosa County, Fla.,

(11th Cir. 1994). Here, based on the alleged facts, there is at least a plausible claim that Stubbs used excessive force in the arrest of Petrovich. Accordingly, it is ORDERED that Defendant’s Motion is DENIED. DONE and ORDERED in Chambers, Orlando, Florida on September 23, 2019.

ie a GREGORY A. PRESNELL a UNITED STATES DISTRICT JUDGE

Copies furnished to: Counsel of Record Unrepresented Party