Opinion
Case No. 04-21121-CIV-LENARD/KLEIN.
August 31, 2005
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (D.E. 36)
THIS CAUSE is before the Court upon the Motion for Summary Judgment ("Motion," D.E. 36), filed on March 30, 2005, by Defendant Miami Dade County ("Defendant" or "the County"). Plaintiff Christine Riley ("Plaintiff" or "Riley") filed her Memorandum of Law in Opposition ("Opposition," D.E. 52) on May 12, 2005. Defendant filed its Reply (D.E. 55) on May 20, 2005. Additionally, Defendant filed a Statement of Undisputed Material Facts ("Def.'s Statement," D.E. 37) on March 30, 2005; Plaintiff filed a Statement of Disputed Material Facts ("Pl.'s Statement," D.E. 51) on May 12, 2005; and Plaintiff filed a Supplemental Statement of Disputed Material Facts ("Pl.'s Supplemental Statement," D.E. 57) on June 3, 2005. Additionally, the Court heard oral argument on Defendant's Motion on August 30, 2005. Having reviewed the Motion, the Opposition, the Reply, the Statements, and the record, and having considered the arguments of the Parties as presented during the August 30, 2005, hearing, the Court finds as follows:
On April 4, 2005, the Court granted Plaintiff's Motion for an Extension of Discovery Deadline and denied Defendant Miami Dade County's Motion for Summary Judgment without prejudice. (See D.E. 41.) On April 25, 2005, the County renewed its Motion for Summary Judgment (D.E. 48).
I. Factual Background
This action arises from an unfortunate incident, in which Austin Riley — an 88-year-old Black man — was shot to death by two Miami Dade police officers. The facts leading up to the shooting are generally undisputed. On the evening of February 25, 2001, Mr. Riley complained to his wife, Plaintiff Christine Riley, of pain in his chest. (Def.'s Statement at ¶ 1; Pl.'s Supplemental Response at ¶ 1.) Mr. Riley stated that he wanted to go to the hospital, and Mrs. Riley told him to wait until morning. (Id.) A while later, Mrs. Riley watched from the living room as Mr. Riley stood at the bedroom door, shut the door, and locked it. (Def.'s Statement at ¶ 2; Pl.'s Supplemental Response at ¶ 2.) Mrs. Riley was unsuccessful in her attempts to speak with Mr. Mr. Riley through the door or to unlock the door herself. (Def.'s Statement at ¶ 3; Pl.'s Supplemental Response at ¶ 3.) Standing at the door, Mrs. Riley heard a noise that sounded like popping or the striking of matches. (Id.) This concerned her because, a week earlier, Mr. Riley had set fire to a napkin or tissue in the living room and had set off the fire alarm. (Id.)
Mrs. Riley may have been approaching the bedroom door at this time. (See Statement of Christine Riley, "Riley Statement," D.E. 51, at Ex. A. at 6.)
Sylvester Scott was also unsuccessful in trying to open the door. (Def.'s Statement at ¶ 3; Pl.'s Supplemental Response at ¶ 3.) He tried for ten to fifteen minutes. He stated that he heard Mr. Riley inside saying "help." (Id.) Mr. Scott also knocked on the bedroom window from outside; he could not see in because the blinds were closed. (Scott Depo. at 30.)
Mrs. Riley was also concerned because of Mr. Riley's poor physical heath. (Affidavit of Christine Riley, "Riley Aff.," D.E. 51, Ex. B, at ¶ 7.) Mrs. Riley and Sylvester Scott testified that Mr. Riley was "feeble and weak." (Riley Aff. at ¶ 4; Statement of Sylvester Scott, "Scott Statement," D.E. 51, Ex. C, at 7 (stating the Mr. Riley was "old, debilitated, can't hardly get around").) He suffered a stroke in 1994; that he had emphysema and high blood pressure; and that he could only move slowly around the home with the aid of his cane. (Statement of Christine Riley, "Riley Statement," D.E. 51, Ex. A, at 10-11.) Mrs. Riley, however, has stated both that Mr. Riley "had pretty good strength in his upper body" (Riley Statement at 11) and that he "was incapable of lifting his walking cane" (Riley Aff. at ¶ 4.) Mr. Scott testified that Mr. Riley's hand shook, for example, if he held a glass of water. (Telephonic Deposition of Sylvester Scott, "Scott Depo.," D.E. 51, Ex. D, at 13.)
There may have also been concern about Mr. Riley's mental heath. The record evidence shows that Mr. Riley, for example, had been talking about deceased family members as if they were alive. Sylvester Scott testified, however, that, on the day of his death, Mr. Riley seemed coherent and lucid and that he was his usual self, "telling jokes and talking about women." (Telephonic Deposition of Sylvester Scott, "Scott Depo.," D.E. 51, Ex. D, at 13, 14.)
Mr. Scott is Mrs. Riley's son and Mr. Riley's step-son. He was staying in the home on the night of the incident, having just arrived from Georgia for a vacation in Miami.
After she determined she was unable to open the bedroom door, Mrs. Riley called 911 for assistance. (Def.'s Statement at ¶ 4; Pl.'s Supplemental Response at ¶ 4.) The first responders to the 911 call were Firefighter Brian Beckman and Fire Lieutenant Paul Blake. (Def's Statement at ¶ 5; Pl.'s Supplemental Response at ¶ 5.) Next, two police officers, Sergeant Robert Funderburk and Officer Michael Roan, arrived separately. (Id.) The Parties are in general agreement that the officers took charge of the situation in the home. (See Def.'s Statement at ¶ 7-8; Pl.'s Statement at ¶ 4; Pl.'s Supplemental Response at ¶ 7.)
Both officers arrived from a domestic dispute incident that was nearby; however, each arrived in his own vehicle. (Statement of Michael Roan, "Roan Statement," D.E. 51, at Ex. 1, at 7-8.)
After this point, witnesses' descriptions of events vary. Mrs. Riley testified that a police officer asked her if she wanted the door kicked down and that she responded in the affirmative because she wanted to know if her husband was "alive or dead or had a heart attack or stroke." (Deposition of Christine Riley, "Riley Depo.," D.E. 37, at Ex. 1, at 70; see also Riley Statement at 9; Scott Statement at 5 (stating that he heard the police officers asking Mrs. Riley if she wanted them to kick the door down).) Neither police officer, however, recalls speaking with Mrs. Riley or asking her for permission to break down the door. (Statement of Robert Funderburk, "Funderburk Statement" D.E. 51, at Ex. H, at 14; Statement of Michael Roan, "Roan Statement," D.E. 51, at Ex. I, at 15-16.)
The Parties also dispute whether, while standing at the bedroom door, the officers knocked or identified themselves. Mrs. Riley's son, Mr. Scott, testified that they did neither. (Scott Depo. at 22.) Mrs. Riley remembers the officers knocking two or three times and saying, "Mr. Riley, this is the police. Come on out. Open the door." (Riley Depo. at 71) The officers testified that Sergeant Funderburk knocked and announced. (Funderburk Statement at 14; Roan Statement at 14-15 (stating that Funderburk announced "Police! Open the door!" multiple times.)
Sergeant Funderburk testified that he does not recall ever speaking with Officer Roan prior to the shooting, to coordinate the entry or otherwise. (Funderburk Statement at 15.)
There is general agreement between the Parties that at least Sergeant Funderburk drew his weapon while standing at the bedroom door (e.g. Funderburk Statement at 15; Scott Statement at 5) and that, at about the same time Sergeant Funderburk began to kick the door, he ordered firefighters and family members out of the house (e.g. Funderburk Statement at 15; Riley Statement at 10; Report of Detective T. Romagni, "Romagni Report," D.E. 51, Ex. K, at 7).
While Mr. Scott and Sergeant Funderburk testified that both officers had their guns drawn (Funderburk Statement at 15; Scott Statement at 5), Officer Roan stated that he did not unholster his gun until he saw Mr. Riley with the shotgun. (Roan Statement at 19-20.)
Subsequent events were described by each of the key witnesses as follows:
Mr. Scott stated that the officers kicked the door only once before it opened (Scott Depo. at 23); that he heard the officers yell at Mr. Riley to "put it down" or "drop it" (id.). He testified that, before he left the house, he observed the officers as each fired his weapon into the bedroom but he could not see into the room. (Scott Statement at 6; Scott Depo. at 29-30.) Last, he stated that the officers were in the house for thirty to forty-five minutes before they came outside with the shotgun. (Scott Depo. at 26.)
The Court notes that, contrary to Plaintiff's statement that Mr. Scott stated that it took the officers thirty to forty-five minutes to exit the bedroom with the shotgun, the record reflects that Mr. Scott was talking about the time it took to leave the house. (Compare Pl.'s Statement at ¶ 5 with Scot Depo. at 26.)
Mrs. Riley testified that she waited until the officer kicked the door for the second time before she followed the others outside; she explained that this is when she heard the door "give" and knew it would open. (Riley Depo. at 71.) As she was rushed out, Mrs. Riley recalls hearing the officers yell, "Police! Drop your gun!," approximately three times before hearing shots. (Riley Statement at 10.) She attested that it was not until the officers asked her for her consent to search the bedroom that they removed the shotgun. (Riley Aff. at ¶ 10.)
Sergeant Funderburk stated that, after he kicked the bedroom door twice, it swung open, allowing him to see a man, sitting on the far side of the bed with a shotgun in his lap. (Funderburk Statement at 15-16.) Funderburk remembers yelling, "Put the gun down!," in order to communicate to Officer Roan that a firearm was involved. (Id. at 17, 19 (stating that he yelled twice).) He further testified that, without responding verbally, Mr. Riley raised the shotgun to his chest and pointed it at Sergeant Funderburk. (Id.) Because he was "in fear of his life and the safety of [others at the scene]," Funderburk stated he fired three times "in the direction of the subject"; he then watched Mr. Riley fall to the floor, entered the room, secured the shotgun, and "checked on the subject to make sure he was no longer a threat." (Id. at 18-20 (explaining that these latter actions took only seconds); Romagni Report at 20 (stating that he later took the shotgun to the living room).)
Officer Roan testified that, after Sergeant Funderburk kicked the door open, he began to enter the bedroom and believed that he saw Mr. Riley with matches in his hand. (Roan Statement at 19.) Immediately, however, he said he heard Funderburk yell, "Drop the gun!," and watched Mr. Riley raise a shotgun with his left hand and point it at him (Roan). (Id. at 19-20) In fear of his life," Officer Roan said he raised his gun with the intent of firing it at Mr. Riley. (Id. at 21.) He stated that he then shot at Mr. Riley while trying to back out of the room and ultimately left the house completely. (Id. at 22-23.) When he returned, he testified that he saw fire rescue personnel lifting Mr. Riley's body from the floor to the bed and that, on the bed, he saw the shotgun. (Id. at 24.) Later, he states he saw the shotgun on a chair in the living room. (Id. at 25.)
In this statement, Officer Roan stated that he unholstered his gun upon seeing the shotgun. Elsewhere, he stated that he unholstered his gun as Sergeant Funderburk began to force the door open. (Romagni Report at 15.)
Officer Roan testified that he did not hear or see Sergeant Funderburk fire his weapon. (Roan Statement at 25.)
Fire Lieutenant Paul Blake was not present during the shooting but testified that less than a minute passed from the time that he heard shots until the time he went back into the house and saw the shotgun in the living room. (Statement of Paul Blake, "Blake Statement," D.E. 51, Ex. G, at 11.)
After the shooting, Mrs. Riley and Mr. Scott were taken to the Miami Dade Police Department Headquarters Complex for questioning. (See Riley Statement (taken at 4:05 a.m.); Scott Statement (taken at 4:24 a.m.).) Some of the responders' statements were also taken at the same time and place (see Roan Statement (taken at 4:25 a.m.); Blake Statement (taken at 4:25 a.m.)), while others were taken later at a different location (see Funderburk Statement (taken on March 5, 2005, at 1:25 p.m.)).
Later, Mrs. Riley explained that she knew the shotgun was in the bedroom because she had wrapped it in a beach towel and hidden it behind an ironing board in the bedroom. (Riley Statement at 8.) She has also stated that Mr. Riley had not used the unloaded shotgun in over twenty years; instead, for personal safety, he had a loaded 9mm semiautomatic handgun in the chest of drawers next to the bed. (Riley Aff. at ¶¶ 5-6.)
Mrs. Riley also subsequently stated that she believes that the officers mistook Mr. Riley's aluminum walking stick for a shotgun. (Riley Aff. at ¶ 9.) In support of this conclusion, she points to the following evidence: Mr. Riley's inability to lift a shotgun; his lack of knowledge as to the whereabouts of the shotgun; his inability to physically retrieve the shotgun; the absence of his fingerprints on the gun; and the fact that the officers did not find the shotgun until she gave her consent for a search of the bedroom. (Id. at ¶¶ 4-6, 9, 10.)
Last, post-incident analyses performed by the Miami Dade Police Department determined that the one bullet removed from Mr. Riley's body was fired from Sergeant Funderburks's duty weapon and that no latent fingerprints were present on the shotgun. (Romagni Report at 22, 23.)
Other bullets were found elsewhere in the room, but the Report only documents one that struck Mr. Riley. (Romagni Report at 22.)
II. Summary Judgment Standard
On a motion for summary judgment, a court must construe the evidence and factual inferences arising therefrom in the light most favorable to the nonmoving party. Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). Summaryjudgment can be entered on a claim only if it is shown "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." Fed.R.Civ.P. 56(c). The Supreme Court has explained the summary judgment standard as follows:
[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The trial court's function at this juncture is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.Anderson, 477 U.S. at 248; see also Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir. 1989).
The party moving for summary judgment "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the `pleadings, depositions, answers to interrogatories, and admissions of file, together with affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. Once this initial demonstration is made, the burden of production, not persuasion, shifts to the nonmoving party. The nonmoving party must "go beyond the pleadings and by [his] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial."' Id. at 324; see also Fed.R.Civ.P. 56(e). In meeting this burden the nonmoving party "must do more than simply show that there is a metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). That party must demonstrate that there is a "genuine issue for trial." Id. at 587. An action is void of a material issue for trial "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party." Id.
III. Discussion
On the basis of the above-described facts, the Complaint filed by Plaintiff Christine Riley asserts four claims against Defendant Miami Dade County: use of excessive force in violation of the Fourth Amendment of the Constitution of the United States (Count One); use of excessive force in violation of Article 1, Section 12, of the Florida Constitution (Count Two); negligence in hiring, retention, and supervision (Count Three); and common law negligence (Count Four). Count Two was voluntarily dismissed on February 9, 2005. (See D.E. 29.) The Court will now examine each of the remaining claims in turn.
A. Use of Excessive Force in Violation of the Fourth Amendment
1. Parties' Arguments
In its Motion, Defendant Miami Dade County argues that it is entitled to judgment as a matter of law on Count One because: (1) the Complaint does not allege that any violation of Mr. Riley's constitutional rights was caused by a policy or custom of the County (Motion at 4-5); (2) Plaintiff has produced no evidence that any unconstitutional policy or custom was the moving force behind any deprivation of Mr. Riley's constitutional rights (id. at 5); and (3) the undisputed record evidence demonstrates that, faced with the imminent threat of deadly force, the officers had no choice but to shoot Mr. Riley, and therefore, no violation of Mr. Riley's constitutional right to be free from use of excessive force can be established (id. at 3-4).
In her Opposition, Plaintiff asserts that (1) Defendant cannot seek dismissal of Count One for failure to state a claim upon which relief can be granted in connection with a motion for summary judgment (Opposition at 8, n. 2); (2) incidents of use of excessive force by Miami Dade County police officers are "so prevalent" and "widespread" that they constitute a custom or raise a question of fact as to whether a custom exists (id. at 7-8); and (3) [u]nder the totality of the circumstances of this case, . . . there exists a question of fact as to whether, given the alternative courses of action available [to Sergeant Funderburk and Officer Roan] under the [Emergency Operations] Plan, the officers acted precipitously in rushing to kick in Mr. Riley's bedroom door, thereby unreasonably creating the crisis [that] result [ed] in a need for the use of deadly force (id. at 6).
The full title of this document, as provided by Plaintiff, is the Miami Dade Police Department's Mobilization and Emergency Operations Plan. (Pl.'s Statement at ¶ 4.)
In its Reply, Defendant reasserts that the officers' conduct did not constitute a violation of Mr. Riley's Fourth Amendment rights (Reply at 1-4) and that Plaintiff has not presented any evidence that any violation was caused by an unconstitutional policy or custom (id. at 6-8). Additionally, Defendant argues that Plaintiff's assertion that the officers did not comply with unspecified po rtions of the Emergency Operations Plan is speculative and unsupported by expert testimony or other relevant evidence. (Id. at 4-6.)
2. Analysis
Title 42, United States Code, Section 1983 creates a cause of action against any "person who, under color of any statute, ordinance, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." For the purposes of this statute, the term "person" has been interpreted to include municipalities, such as Miami Dade County. See Monell v. Dept. of Social Services of the City of New York, 436 U.S. 658, 691 (1978).
The U.S. Supreme Court has placed "strict limitations" on municipal liability under Section 1983. Gold v. City of Miami, 151 F.3d 1346, 1350 (1 lth Cir. 1998). Municipalities will not be held liable for injuries caused solely by their employees or agents. Monell, 436 U.S. at 691, 694 (explaining that a municipality cannot be held liable under Section 1983 on arespondeat superior theory); see also City of Canton, Ohio, v. Harris, 489 U.S. 378, 385 (1989); Mercado v. City of Orlando, 407 F.3d 1152, 1161 (11th Cir. 2005). Instead, only "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury [is] the government, as an entity responsible under [Section] 1983."Monell, 436 U.S. at 694; see also Mercado, 407 F.3d at 1161; Vineyard v. County of Murray, Georgia, 990 F.2d 1207, 1211 (11th Cir. 1991) ("To attribute liability to a municipality under [Section] 1983, the plaintiff must demonstrate that the municipality had an official policy that was the moving force of the constitutional violation" (internal citations omitted)). Accordingly, even if Sergeant Funderburk and Officer Roan, as employees of Defendant Miami Dade County, violated Mr. Riley's Fourth Amendment right to be free from use of excessive force, Defendant Miami Dade County will not be held liable unless an official policy or custom of the County was the "moving force" of that violation. See Vineyard, 990 F.2d at 1211.
The Fourth Amendment's guarantee of freedom from unreasonable searches and seizures includes the right to be free from excessive force during a criminal apprehension. Mercado v. City of Orlando, 407 F.3d 1152, 1156-57 (11th Cir. 2005) (citingGraham v. M.S. Connor, 490 U.S. 386, 394-95 (1989)). In determining whether the officers' force was reasonable, a court must assess "whether a reasonable officer would believe that this level of force is necessary in the situation at hand. Id. (citing Lee v. Gerraro, 284 F.3d 1188, 1197 (11th Cir. 2002).) Under Graham, courts are directed to examine the "objective reasonableness" of a seizure by balancing the "nature and quality of the intrusion" against the "governmental interest at stake." 490 U.S. at 396. The government's interest is determined by considering the following non-exclusive factors: the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, whether the suspect is actively resisting arrest or att empting to evade arrest by flight. Id. "Objective reasonableness" must be judged from the perspective of a reasonable officer on the scene, not with the 20/20 vision of hindsight. Id.
Plaintiff Riley relies heavily on the decision inAlexander v. City and County of San Francisco, 29 F.3d 1355 (9th Cir. 1994), in support of its argument that summary judgment should not be entered in favor of Defendant Miami Dade County. (See Opposition at 5-6.) This opinion, however, also explains that a "municipality may be liable under [Section] 1983 only if its policy or custom caused the constitutional deprivation complained of." Alexander, 29 F.3d at 1367 (internal citation omitted). Therefore, the Alexander decision is consistent with the Court's analysis.
Here, Defendant Miami Dade County argues that Plaintiff has produced no evidence that any unconstitutional policy or custom was the moving force behind any deprivation of Mr. Riley's constitutional rights. (Motion at 5.) In response, Plaintiff has offered two articles (see D.E. 5 1, Ex. L, M), which she argues demonstrate that incidents of use of excessive force are "so prevalent" and "widespread" as to constitute a custom. (Opposition at 7-8.) Only the first article merits discussion. This article, entitled "Congressional Panel Listens to Criticism of Police in Dade" and published in the Miami Herald on March 9, 2002, describes a meeting of a congressional panel, in which complaints about police practices in Miami Dade County were heard. (D.E. 5 1, Ex. L, at 1.) This article describes the allegations of critics that officers are poorly trained and use deadly force to an excessive degree; it also contains arguments that the police action criticized was lawful and that the officers' practices were proper. (Id. at 1-2.) Additionally, the article states that federal authorities would review the information collected during the meeting to determine whether a formal investigation was warranted. (Id. at 1.)
Defendant has also alleged that it is also entitled to judgment as a ma tt er of law because Complaint does not contain any allegation that Mr. Riley's constitutional rights was caused by a policy or custom of the County. (Motion at 4-5.) The Court cannot agree. The Complaint alleges that the County "beached its duty to hire, supervise, and retain competent staff' and that duty "was the proximate cause of Decedent's death." (Compl. at ¶¶ 25-26.) Accepting these statements as true and viewing them in the light most favorable to Plaintiff, see Scott v. Taylor, 405 F.3d 1251, 1254 (11th Cir. 2005) (stating the standard for entry of judgment on the pleadings), the Court finds that Plaintiff's allegations are sufficient to state a claim upon which relief may be granted. See Vineyard, 990 F.2d at 1211-12 (affirming a jury verdict on a claim that defendant-county's failure to train, supervise, or discipline its employees demonstrated the county's deliberate indifference to the rights of arrestees to be free from the use of excessive force and was the "moving force" behind the constitutional violation).
The second article is wholly irrelevant to the present action. Titled "Experts say Firearms Training Needs to Come Out of the Dark" and published in the Law Enforcement News in Fall 2004, this article is not specific to Miami Dade County and concerns the need to better train officers to prevent the large number of police shootings that occur in a darkened se tt ing, such as outside at night. (D.E. 51, Ex. M.) Because there is no dispute that the shooting death of Mr. Riley occurred indoors and in a lit room, the Court finds that this article is neither probative nor relevant.
To establish Section 1983 liability based on custom, a plaintiff must "prove the existence of a widespread practice that . . . is so permanent and well settled as to constitute custom or usage with the force of law." City of St. Louis v. Prapronik, 485 U.S. 112, 127 (1988); Adickes, 398 U.S. at 167-68. Even after construing the content of the Miami Herald article and the factual inferences arising therefrom in the light most favorable to Plaintiff Riley, see id. at 157, and ignoring all issues relevant to the inadmissibility of this evidence at trial, the Court concludes that no rational trier of fact could find that this article demonstrates the existence of a permanent, well-settled, or widespread practice of unconstitutional use of deadly force. See Matsushita Elec. Indus. Co., 475 U.S. at 587. In fact, this article is wholly devoid of any documentation of any specific event or incident similar to the facts of the present case.
Moreover, even though a pattern of improper supervision and of similar deficiencies, under specific circumstances, have been found to constitute a basis for municipal liability for use of excessive force, Plaintiff Riley has brought forth no evidence of any pattern of improper hiring, retention, or supervision or of any evidence that the County was aware of or indifferent to such deficiencies. (See Section III. B.,infra.)
See Vineyard, 990 F.2d at 1211 (finding the defendant-county liable under Section 1983 for the inadequate training, supervision, and discipline of its employees when these deficiencies caused use of excessive force against the plaintiff and when the county was deliberately indifferent to the rights of individuals such as the plaintiff); see also Mercado, 407 F.3d at 1161; Gold, 151 F.3d at 1350.
Accordingly, the Court determines that there is no material dispute as to whether Defendant Miami Dade County had a custom of use of excessive force and that the entry of summary judgment in favor of the County is proper as to Count One.
B. Negligent Hiring, Retention, and Supervision
In its Motion, Defendant Miami Dade County contends that it is entitled to summary judgment as to Count Three because Plaintiff has failed to produce any evidence in support of her negligent hiring, retention, and or supervision claims. (Motion at 6-8.) In her Opposition, Plaintiff does not attempt to rebut this argument. Because Plaintiff has not designated any specific facts showing that there is a genuine issue for trial,see Celotex, 477 U.S. at 324; see also Fed.R.Civ.P. 56(e). the Court concludes that summary judgment is properly granted as to these claims.
At the August 30, 2005, hearing, Plaintiff Riley's counsel confirmed that Count Three had been abandoned.
C. Common Law Negligence
1. Parties' Arguments
In its Motion, Defendant Miami Dade County argues that Plaintiff Riley's common law negligence claim against it must be dismissed because: (1) Plaintiff is improperly attempting to assert that Sergeant Funderburk and Officer Roan negligently used excessive force, even though negligence involves unintentional acts and use of excessive force involves intentional acts (Motion at 8); (2) the Florida Wrongful Death Act provides the exclusive remedy for any claim for death resulting from the negligence of another because an action for wrongful death is purely a statutory right (id. at 8-9); and (3) even if Plaintiff had alleged a claim under the Wrongful Death Act, the forcible felony defense — based on Mr. Riley's aggravated assault of the officers — bars any such claim (id. at 9-10).
In her Opposition, Plaintiff Riley maintains that (1) Florida law recognizes a cause of action for the negligent handling of a firearm and the negligent decision to use a firearm and (2) the Wrongful Death Act "contains no language which establishes it as the exclusive remedy for all cases involving death"; (3) whether Mr. Riley "actually pointed a shotgun at the police officers is precisely one of the issues of fact that is in dispute" in this action; and (4) the dismissal of Count Four for failure to state a claim upon which relief can be granted cannot be made in connection with a motion for summary judgment (Opposition at 8-9).
In its Reply, Defendant reasserts that the Wrongful Death Act is the exclusive remedy for all cases involving death caused by negligence. (Reply at 8-9). Defendant additionally argues that the decision cited by Plaintiff, in which causes of action for negligent use of a firearm and negligent training were stated, was brought under the Wrongful Death Act and that Plaintiffs claim that her negligence claim is not based on the use of excessive force is belied by the allegations in the Complaint. (Id. at 9-10.)
2. Analysis
In the Complaint, Plaintiff Riley alleges that Defendant Miami Dade County owed a duty to Austin Riley to ensure that its police officers did not act in a tortious manner toward him and that the County breached that duty when Sergeant Funderburk and Officer Roan committed a tortious act against Mr. Riley, thus causing his death. (Compl. at ¶¶ 28, 30, 31.) Under Florida law, a negligence action accrues, in favor of the person injured, at the time of the allegedly negligent act.Taylor v. Orlando Clinic, 555 So. 2d 876, 878 (Fla. 5th Dist. Ct. App. 1990). However, "[w]hen a personal injury to the decedent results in death, no action for the personal injury shall survive, and any such action pending at the time of death shall abate." Fla. Stat. § 768.20; see also Knowles v. Beverly Enterprises-Florida, Inc., 898 So.2d 1, 8-9 (Fla. 2005);Taylor, 555 So. at 879; AcandS, Inc. v. Redd, 703 So.2d 492, 493 (Fla. 3d Dist.Ct.App. 1997). At that time and in place of the personal injury action, a statutory cause of action under the Florida Wrongful Death Act accrues in favor of the estate of the deceased. Fla. Stat. § 768.19; see also Taylor, 555 So. at 878 (explaining that a personal injury action and a wrongful death action "cannot exist at the same time"). Therefore, the Court finds that Plaintiff Riley's common law negligence action against the County is barred by the Florida Wrongful Death Act. Because Plaintiff Riley has confirmed, through counsel at the August 30, 2005, hearing, that she is not bringing any claim under the Wrongful Death Act and, in essence, does not wish to do so, the Court concludes that Defendant Miami Dade County is entitled to judgment as a matter of law as to Count Four. Accordingly, it is:
Fla. Stat. §§ 768.16-.27.
Although Plaintiff argues that "the Florida Reporter is replete with cases in which parties have chosen [to bring] either [common law negligence or wrongful death] cause [s] of action, or both, to pursue a claim for damages in cases involving deathsee Opposition at 9), she only cites to Estate of Vazquez v. Avante Groups, Inc., 880 So.2d 723 (Fla. 5th Dist.Ct.App. 2004), which does not involve a negligence claim based on personal injury and thus is inapposite to the present analysis.
In Estate of Vazquez, the plaintiff-estate asserted a wrongful death claim, a common law negligence claim, and a statutory claim for defendant-nursing home's violation of the Patient's Bill of Rights under Chapter. Id. at 724. The court described plaintiff's negligence claim as "virtually identical" to plaintiff's statutory claim for defendant-nursing home's violation of the Patient's Bill of Rights as established by Chapter 400 of the Florida Statutes. Id. at 725. Although not addressed in the court's sparse order, it appears that these two claims — the negligence claim and the Chapter 400 claim — werenot based on personal injury, but, instead were based on allegations of the defendant-nursing home's failure to inform the Vazquez family of significant changes in the patient's health; on fraudulent documentation; on inadequate staffing. See 6 No. 24 Andrews Nursing Home Litig. Rep. 3 (May 28, 2004).
Under the Florida Wrongful Death Statute, personal injury actions are abated upon the death of the person injured. See Fla. Stat. § 768.20; see also Knowles, 898 So.2d at 8-9;Taylor, 555 So. at 879; AcandS, 703 So.2d at 493. Because Plaintiff Riley's common law negligence claim is based on personal injury to Mr. Riley, the Court concludes that this claim is barred by the Florida Wrongful Death Statute.
In her Opposition, Plaintiff Riley argues that Florida law recognizes an independent cause of action for the negligent use of a firearm. (Opposition at 8 (citing Lewis v. City of St. Petersberg, 260 F.3d 1260, 1262 (11th Cir. 2001).) Plaintiff is correct, in part. While such a claim may be stated from Florida law, if the victim of the alleged negligence dies as a result thereof, this claim must be asserted under the Wrongful Death Act. See Lewis, 260 F.3d at 1262 (denying a motion to dismiss a claim for negligent use of a firearm brought against the city pursuant to the Florida Wrongful Death Act).
ORDERED AND ADJUDGED that:
1. Defendant Miami Dade County's Motion for Summary Judgment ("Motion," D.E. 36), filed on March 30, 2005, and renewed on April 25, 2005 (see D.E. 48), is GRANTED.
2. This case is CLOSED.
3. All pending motions are DENIED as moot.