Opinion
Case No: 8:06-CV-158-T-23MAP.
July 5, 2006
ORDER
Susan Pleso sues the Pinellas County Sheriff (the "sheriff") pursuant to 42 U.S.C. § 1983 for unreasonable search and seizure and pursuant to state law for negligence. The complaint alleges that the High Intensity Drug Trafficking Area Task Force (the "task force"), operated by the sheriff, suspected the plaintiff's minor son of using the plaintiff's residence to store and to distribute marijuana and cocaine. The task force obtained a search warrant for the plaintiff's residence. In execution of the warrant, the task force employed a diversionary device and entered the plaintiff's residence unannounced. The complaint alleges that the officers seized the plaintiff and used excessive force by thrusting an officer's boot into the plaintiff's back, with such great force that she urinated involuntarily. As the task force searched the plaintiff's residence, an officer placed a red rag over the plaintiff's head, blocking her vision. Task force officers took the plaintiff to the garage and interrogated the plaintiff for approximately one hour, the rag remaining all the while on her head.
Count one asserts a claim for "unreasonable search and seizure in violation of the Fourth and Fourteenth Amendments." Count two asserts a claim for "practice, policy, and/or custom of unreasonable search and seizure." Because a Section 1983 claim against a sheriff requires both an allegation of a constitutional violation and an allegation that a policy of the sheriff caused the violation, counts one and two are considered as a single count pursuant to Section 1983 for unreasonable search and seizure.
The complaint asserts a Section 1983 claim against the sheriff for the acts of the task force and claims that:
The defendant's use of excessive force in execution of the search warrant against the plaintiff, along with its treatment of similarly-situated individuals yet unknown to the plaintiff, is evidence of a practice, policy and/or custom of repeated and persistent constitutional violations by the defendant.
The defendant was deliberately indifferent in failing to take protective or corrective measures so as to protect the plaintiff and other yet to be identified similarly-situated individuals from further constitutional violations by the defendant after being put on notice of the unconstitutional acts.
"Section 1983 will not support a claim based on a respondeat superior theory of liability." Polk County v. Dodson, 454 U.S. 312, 325 (1981) (citing Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978), and dismissing claims against the county). To establish a claim against a government body under Section 1983, the plaintiff must demonstrate that an official policy is "the moving force of the constitutional violation."Monell, 436 U.S. at 694; see also Nesbitt v. Florida, 2006 WL 1653602 (N.D. Fla.) (holding that the sheriff, in his official capacity, is the appropriate defendant in a Section 1983 claim). Further, a plaintiff demonstrates "supervisory liability" upon a showing that either the "supervisor personally participate[d] in the alleged constitutional violation" or "there is a causal connection between actions of the supervising official and the alleged constitutional deprivation." Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990).
Although skeletal and perfunctory, the defendant's motion to dismiss asserts sufficient authority pursuant to Monell for dismissal. Accordingly the motion (Doc. 6) is GRANTED. The complaint fails to allege that the sheriff was present during the search of the plaintiff's home. Further, the plaintiff's allegations establish neither a policy that results in a constitutional violation nor a causal connection between the sheriff's actions and any alleged constitutional deprivation. The allegations of similar violations against "yet unknown" and "yet to be identified" individuals fail to establish "a history of widespread abuse" that notifies the sheriff of the need to correct the alleged deprivation. Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990) ("The deprivations that constitute widespread abuse sufficient to notify the supervising official must be obvious, flagrant, rampant and of continued duration, rather than isolated occurrences."). Instead, the complaint describes an isolated occurrence which fails to result from an official policy. Accordingly, the complaint fails to state a Section 1983 claim against the sheriff and counts one and two are DISMISSED. On or before July 21, 2006, the plaintiff may amend the complaint.
Count three asserts a state law claim for negligence. The district courts of the United States have original jurisdiction over "all civil actions arising out of the Constitution, laws, or treaties of the United States." 28 U.S.C.A. § 1331. When a state law claim arises out of the same case or controversy as the federal claim, United States district courts may exercise supplemental jurisdiction. See 28 U.S.C.A. § 1367 (a). However, the court declines to exercise jurisdiction over the state negligence claim. Count three is dismissed without prejudice to the plaintiff's filing a claim in state court.
ORDERED.