Musgrove v. City of Cocoa, Florida et al, No. 6:2014cv00379 - Document 71 (M.D. Fla. 2015)

Court Description: ORDER granting in part and denying in part 43 Defendants' Motion for Summary Judgment. Signed by Judge Paul G. Byron on 9/14/2015. (SEN)

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Musgrove v. City of Cocoa, Florida et al Doc. 71 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION STELLA MUSGROVE, Plaintiff, v. Case No: 6:14-cv-379-Orl-40GJK CITY OF COCOA, FLORIDA, BRANDON MCINTYRE, and ALAN WORTHY, Defendants. ORDER This cause comes before the Court without oral argument on Defendants’ Motion for Summary Judgment and Memorandum of Law in Support Thereof (Doc. 43), filed May 4, 2015. Plaintiff responded in opposition on May 26, 2015 (Doc. 47) and Defendants replied on June 9, 2015 (Doc. 51). Upon consideration and review of the record as cited by the parties in their respective papers, the Court grants in part and denies in part Defendants’ motion for summary judgment. I. BACKGROUND A. Facts This lawsuit arises out of Plaintiff Stella Musgrove’s arrest by Defendants, Officer Brandon McIntyre and Officer Alan Worthy, in April 2011. The parties generally agree to the facts leading up to police becoming involved. At the time of the incident, Musgrove was living with her long-term boyfriend in an apartment immediately next door to Taylor Wimberly, Wimberly’s wife, and their nine-month-old child. In the early evening of April 12, Musgrove invited family over for dinner, drinks, and socializing. As the night 1 Dockets.Justia.com progressed, and after a few beers, Musgrove turned on some music. At approximately 1:00 a.m., Wimberly visited Musgrove and asked her to turn down the music, as he, his wife, and their child were trying to sleep. Musgrove states that she complied with Wimberly’s request. Ten minutes later, Wimberly visited Musgrove’s apartment a second time to again ask that Musgrove lower her music. This visit, however, turned combative, with both Wimberly and Musgrove yelling, cursing, and exchanging racial epithets. Overhearing the commotion, Wimberly’s wife called 911. The parties’ stories diverge from there. According to Musgrove, police officers arrived at the apartment complex and knocked on her door. Musgrove states that an officer informed her that he had received a noise complaint, but then turned around and walked away without further comment. Musgrove closed the door to her apartment and sat down on the couch in her living room. Musgrove then noticed flashes of light shining through her living room window, which she discovered were coming from police officers pointing their flashlights at her apartment. After the lights stopped flashing, Musgrove exited her apartment to smoke a cigarette. Musgrove states that while she was sitting on the step immediately outside her apartment smoking, she saw a police officer walk up the sidewalk toward her. As Musgrove rose to meet the officer, the officer pulled out his Taser and shot her in the chest.1 (Doc. 39-1, 37:6–47:4). 1 The Taser used in this case works by shooting two barbs into the target’s body. These barbs are connected by wires to the handheld, battery-powered Taser unit, which then delivers an electrical current to the target for a period of several seconds. Ideally, this electrical current causes the target’s muscles to seize up, immobilizing the target as long as electricity is being applied. Immediately after the electrical current ends, the target usually regains ordinary muscle function. As long as the barbs remain in contact with the target’s body and attached to the handheld Taser unit by the wires, an officer can discharge multiple electrical shocks, each for a period of several seconds. Should the Taser lose its charge, lose contact with its barbs, or otherwise malfunction, an 2 After being stunned by the Taser, Musgrove states that she turned around to escape into her apartment. As she crossed the threshold, two officers tackled Musgrove from behind, causing her to fall and land on her stomach. As she lay on the floor, the officers discharged the Taser two more times. After being shocked with the Taser the third time, Musgrove stood up and attempted to run to her bedroom. As she made it through the bedroom doorway, the officers discharged the Taser a fourth time, causing her to collapse near her bed. While lying on her side next to the bed, the officers shot Musgrove with a new Taser cartridge and shocked her a fifth and sixth time. (Id. at 48:19– 59:8). The officers finally handcuffed Musgrove, removed her from the apartment, and rested her on her stomach on the grass outside. While lying on the grass in handcuffs, one officer came over to Musgrove and sprayed her in the face with pepper spray. Musgrove was then placed into a police car and transported to the Cocoa Police Department. (Id. at 59:14–67:25). According to Officers McIntyre and Worthy, they were the two police officers primarily involved in the events leading to Musgrove’s arrest. Both officers state that they arrived at the apartment complex to respond to a noise complaint. After speaking with Wimberly, the officers confronted Musgrove outside her apartment and advised her that they were there because of her loud music. Both officers state that Musgrove told them that she was not doing anything wrong and to leave her alone. Musgrove then went back inside her apartment and slammed the door. Officers McIntyre and Worthy returned to speak with Wimberly a second time in order to determine if he wished to press charges officer can load a fresh cartridge into the Taser and shoot the target again with two new barbs. 3 against Musgrove. During their conversation with Wimberly, Musgrove came out of her apartment multiple times to yell, curse, and scream at her neighbor. After multiple incidents of Musgrove exiting her apartment to berate him, Wimberly informed the officers that he wanted to press charges against Musgrove for breach of the peace. (Doc. 34-1, 6:9–9:20; Doc. 38-1, 9:21–18:12). Officer Worthy then proceeded to Musgrove’s apartment and waited directly outside the door for Musgrove to come out again. As soon as Musgrove emerged, Officer Worthy grabbed her arm and informed her that she was under arrest. To his surprise, however, Musgrove grabbed Officer Worthy’s right arm and pulled him into her apartment. The two tussled in the living room as Officer Worthy tried to restrain Musgrove, resulting in Musgrove falling to the ground. While on the ground, Musgrove kicked at Officer Worthy as he attempted to grab her arms to detain her. At this point, Officer McIntyre entered the apartment to assist Officer Worthy. Officer McIntyre then shot Musgrove with his Taser and discharged the Taser two times. (Doc. 34-1, 9:25–11:3; Doc. 38-1, 22:18– 30:6). According to Officer Worthy, Musgrove stood up after being shocked twice by the Taser. Officer McIntyre discharged the Taser a third time, causing Musgrove to fall into a glass coffee table. Musgrove stood up a second time and bolted for her bedroom. Officers McIntyre and Worthy pursued Musgrove and tackled her from behind, causing Musgrove to fall onto the floor next to her bed. While on the ground, Musgrove screamed, kicked, and tried to bite the officers. Officer McIntyre therefore discharged his Taser a fourth time. The officers finally subdued Musgrove, placed her in handcuffs, and led her outside. On the way out of the apartment, however, Musgrove renewed kicking and screaming, causing Officers McIntyre and Worthy to tackle her onto the grass and Officer 4 McIntyre to spray Musgrove in the face with pepper spray. Musgrove was then placed into a police car and transported to the Cocoa Police Department. (Doc. 34-1, 11:4–21:1; Doc. 38-1, 30:20–48:3). B. Procedural History Musgrove initiated this lawsuit on March 7, 2014 by filing a five-count Complaint. (Doc. 1). On June 27, 2014, Musgrove filed a six-count Amended Complaint, which remains her operative pleading in this action. (Doc. 23). Musgrove sues Officers McIntyre and Worthy in their individual capacities along with their employer, the City of Cocoa (the “City”). Musgrove has since voluntarily dismissed Counts II, III, and VI of her Amended Complaint, leaving three claims remaining. (Doc. 31). Those claims are for the excessive use of force in violation of the Fourth Amendment against the officers and the City (Count I), intentional infliction of emotional distress against the officers (Count IV), and negligent infliction of emotional distress against the City (Count V). Defendants now move for summary judgment on all three counts. II. STANDARD OF REVIEW “The court shall grant summary judgment 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.” Fed. R. Civ. P. 56(a). The party moving for summary judgment must “cit[e] to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers, or other materials” to support its position that it is entitled to summary judgment. Fed. R. Civ. P. 56(c)(1)(A). “The court need consider only the cited materials,” but may also consider any other material in the record. Fed. R. Civ. P. 56(c)(3). 5 An issue of fact is “genuine” only if “a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if the fact could affect the outcome of the lawsuit under the governing law. Id. The moving party bears the initial burden of identifying those portions of the record demonstrating a lack of genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004). If the movant shows “an absence of evidence to support the nonmoving party’s case,” the burden then shifts to the non-moving party to demonstrate that there are, in fact, genuine disputes of material facts. Celotex, 477 U.S. at 325; see also Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006). In determining whether a genuine dispute of material fact exists, the Court must read the record and the evidence presented in the light most favorable to the non-moving party. See Porter, 461 F.3d at 1320. Summary judgment should only be granted “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita, 475 U.S. at 587. III. DISCUSSION A. Count I: Section 1983 Excessive Force Claim Section 1983 provides the procedural mechanism for vindicating constitutionally protected rights violated by persons who act under color of state law. Laster v. City of Tampa Police Dep’t, 575 F. App’x 869, 872 (11th Cir. 2014) (per curiam). Included within the Fourth Amendment’s protection against unreasonable searches and seizures is the guarantee that all individuals shall be free from the use of excessive force by police officers during the course of an arrest. Fils v. City of Aventura, 647 F.3d 1272, 1287 (11th Cir. 2011). As such, a police officer violates the Fourth Amendment and will be liable 6 under § 1983 when he inflicts unreasonable injury while attempting to effect a suspect’s arrest. See id. A municipality such as the City can also be liable for the unconstitutional actions of its officers, but only where the municipality is “found to have itself caused the constitutional violation at issue.” Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1145 (11th Cir. 2007). Because the resolution of Musgrove’s excessive force claim against the City depends on whether its police officers violated Musgrove’s constitutional rights in effecting her arrest, the Court must first examine Count I with respect to Officers McIntyre and Worthy. See Dahl v. Holley, 312 F.3d 1228, 1236 (11th Cir. 2002) (holding that a municipality cannot be liable under § 1983 unless its officers violated the plaintiff’s constitutional rights). The Court will then turn to the City’s potential liability for the officers’ actions. 1. Officers McIntyre and Worthy The Court begins by characterizing the nature of Musgrove’s excessive force claims. Musgrove identifies two instances of excessive force by Officers McIntyre and Worthy. First, Musgrove alleges that, in attempting to effect an arrest for breach of the peace, the officers used excessive force when they initially shot Musgrove with a Taser without any warning or command and continued to shock Musgrove with the Taser although she never resisted, never acted threateningly or violently, and never attempted to flee. (Doc. 47, p. 12). Second, Musgrove alleges that Officer McIntyre used excessive force when he pepper sprayed Musgrove in the face while she was lying subdued in handcuffs on the grass outside her apartment. (Id. at p. 10). Officers McIntyre and Worthy move for summary judgment on the grounds that they are entitled to qualified immunity. (Doc. 43, pp. 16–21). Qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not 7 violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To receive qualified immunity, a government official “must first prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal quotation marks omitted). A government official acts within his discretionary authority when he “perform[s] a legitimate job-related function . . . through means that were within his power to utilize.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004). “Once the defendant establishes that he was acting within his discretionary authority, the burden shifts to the plaintiff to show that qualified immunity is not appropriate.” Lee, 284 F.3d at 1194. To do so, the plaintiff must make a two-part showing. First, she must demonstrate that the facts of the case, if proven to be true, would make out a violation of a constitutional right. Pearson v. Callahan, 555 U.S. 223, 232 (2009); Beshers v. Harrison, 495 F.3d 1260, 1265 (11th Cir. 2007). Second, she must demonstrate that the constitutional right was “clearly established” at the time of the alleged misconduct.2 Pearson, 555 U.S. at 223. Here, the parties do not dispute that Officers McIntyre and Worthy were acting within their discretionary authority when they responded to a 911 call regarding a noise complaint and arrested a suspect for breach of the peace. Defendants therefore argue 2 The Court may address this two-part qualified immunity inquiry in any order, although the United States Supreme Court encourages courts to address the constitutional violation prong first in order to develop a body of clearly established law on the often fact-specific inquiries that arise in the context of § 1983 litigation. See Pearson, 555 U.S. at 236 (“The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.”). 8 that Musgrove cannot meet her two-part burden of showing that the facts of this case make out a violation of a constitutional right and that said constitutional right was clearly established at the time of the officers’ misconduct. “In an excessive force case arising out of an arrest, whether a constitutional violation occurred is governed by the Fourth Amendment’s ‘objective reasonableness’ standard.” Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008). To that end, the force used by a police officer in effecting an arrest complies with the Fourth Amendment when an objectively reasonable officer confronted with the same circumstances would find that the force used is not excessive. Graham v. Connor, 490 U.S. 386, 397 (1989). Importantly, the force used by an officer “must be judged 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.” Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993) (subsequent history omitted). In measuring whether the use of force was reasonable, a court must consider myriad factors, including (1) the need for the force, (2) the proportionality of the force used in relation to its need, (3) the extent of the injury inflicted on the suspect, and (4) whether the force was applied maliciously or sadistically. See Hadley, 526 F.3d at 1329; Vinyard v. Wilson, 311 F.3d 1340, 1347 (11th Cir. 2002). The facts in this case, if proven true, would establish the use of excessive force by Officers McIntyre and Worthy. First, the need for force was low, as the officers intended to arrest Musgrove for a non-violent misdemeanor—breach of the peace. Additionally, the need for force in effecting the arrest was minimal and the force actually used by the officers was disproportionate, as Musgrove produces evidence showing that she never resisted, acted violently, or attempted to flee. Specifically, Musgrove testified at her deposition that, while she was sitting on her stoop smoking a cigarette, a police officer 9 walked up to her and shot her with a Taser without warning or command. (Doc. 39-1, 46:5–47:4). As she tried to escape into her apartment, Musgrove was tackled from behind and shocked with the Taser two more times. (Id. at 48:19–53:9). Musgrove attempted to escape a second time by running into her bedroom; however, she was shocked several more times with the Taser. (Id. at 53:23–59:8). Finally, the officers led Musgrove out of her apartment and sprayed her in the face with pepper spray despite the fact that she was already handcuffed on the ground and not resisting. (Id. at 59:14–66:2). Musgrove’s boyfriend confirms that Musgrove never resisted arrest and testified that he begged the officers to stop shocking Musgrove with the Taser because he thought they were going to kill her. (Doc. 36-1, 47:7–48:17, 50:12–58:17, 61:20–64:25). Musgrove’s account of the facts is further corroborated by her neighbor (Wimberly), who testified that he heard silence while police were trying to arrest Musgrove and then the sound of electricity from a Taser—indicating that Musgrove was not fighting with or resisting the officers prior to their initial use of the Taser. (Doc. 35-1, 23:12–24:17). Finally, the log from the Taser used against Musgrove confirms that it was discharged seven times within approximately two minutes. (Doc. 47-2). For the same reasons, the risk of flight by Musgrove was minimal, as the evidence produced by Musgrove shows that she was compliant at all times during her arrest. Further, Musgrove’s account of the facts indicates that Officer McIntyre and Worthy’s conduct was malicious, as the officers applied a Taser several times to a submissive Musgrove and pepper sprayed Musgrove in the face while she was lying handcuffed and prone on the ground. Accordingly, Musgrove meets her burden of establishing that the officers’ use of the Taser and Officer McIntyre’s use of pepper spray was excessive and in violation of her constitutional rights. 10 As to the second part of the qualified immunity showing, a constitutional right is clearly established at the time of the violation when “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202 (2001). “[T]he salient question . . . is whether the state of the law . . . gave [the officers] fair warning that their alleged treatment of [the plaintiff] was unconstitutional.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). To answer the “clearly established” inquiry, a court must first look to the words of the federal statute or constitutional provision in dispute. Vinyard, 311 F.3d at 1350. Where the words of the federal statute or constitutional provision are “so clear” and the conduct alleged by the plaintiff is “so bad,” it is said that the case is one of “obvious clarity”; prior case law is unnecessary for an objectively reasonable officer to have fair warning that his conduct is unlawful. Id. Only when “the conduct is not so egregious” as to violate a federal statute or constitutional provision on its face does a court then turn to case law. Id. at 1351. With regard both to the officers’ use of the Taser and to Officer McIntyre’s use of pepper spray, the Court need not turn to pre-existing law, as the words of the Fourth Amendment and the conduct alleged by Musgrove form a case of “obvious clarity.” The state of the law in April 2011 was clearly established that Officer McIntyre’s and Officer Worthy’s conduct violated Musgrove’s constitutional rights. No objectively reasonable police officer facing Officer McIntyre and Worthy’s situation would believe that he could lawfully shoot a suspect with his Taser without any warning or command and continue to shock the compliant suspect several times in order to complete an arrest for breach of the peace. Likewise, no objectively reasonable police officer facing Officer McIntyre’s situation would believe he could lawfully pepper spray an arrestee in the face where the arrestee was lying on the ground in handcuffs not resisting or acting violently. See also 11 id. at 1355 (finding that officer who pepper sprayed arrestee who was handcuffed and secured in backseat of patrol car for screaming at and exchanging obscenities with the officer formed a case of obvious clarity). The conduct Musgrove describes clearly goes beyond the boundaries of reasonable force permitted on the face of the Fourth Amendment. As a result, Musgrove meets her burden of showing that the constitutional right she alleges was clearly established at the time of the incident. The Court will therefore deny qualified immunity to Officers McIntyre and Worthy. 2. The City Having found that Officers McIntyre and Worthy are not entitled to qualified immunity, the Court must now determine whether the City can be held liable for the officers’ conduct as their employer. As mentioned briefly above, a municipality such as the City is only responsible for the unconstitutional conduct of its officers when the municipality itself caused the constitutional violation. Skop, 485 F.3d at 1145. A municipality can only cause a constitutional violation when it acts “pursuant to [an] official municipal policy of some nature.” Monell v. Dep’t of Social Servs. of City of NY, 436 U.S. 658, 691 (1978). Therefore, a plaintiff who intends to impose liability against a municipality must show a “direct causal link” between a municipal policy and her constitutional injuries. City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989). In the instant case, Musgrove intends to impose liability against the City under two theories: (1) that the City had a policy or custom of excessive Taser use, and (2) that the City failed to adequately train its police officers in the lawful use of Tasers. (Doc. 23, ¶¶ 21–23). The Court examines each theory in turn. 12 a. Policy or Custom Municipal policy can come in different forms. Intuitively, the most obvious examples are officially promulgated ordinances, rules, regulations, codes, or a decision rendered by a policymaker. See, e.g., Monell, 436 U.S. at 694–95; City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (plurality opinion). Less-than-formal policies may also cause constitutional violations that subject a municipality to liability, such as when the plaintiff’s constitutional injuries are caused by an unofficial custom or practice of the municipality that is so well-settled, permanent, pervasive, and wide-spread “that it takes on the force of the law.” McDowell v. Brown, 392 F.3d 1283, 1290 (11th Cir. 2004). Regardless of whether a policy takes the form of an official policy or an unofficial custom, a municipality will only be held responsible “for those deprivations resulting from the decisions of its duly constituted legislative body or of those officials whose acts may fairly be said to be those of the municipality.” Bd. of Cnty. Comm’rs of Bryan Cnty., Okla. v. Brown, 520 U.S. 397, 403–04 (1997). A municipality will not be liable under § 1983 for random acts, isolated incidents, or customs or practices of which its policymakers were unaware. Depew v. City of St. Marys, Ga., 787 F.2d 1496, 1499 (11th Cir. 1986). Therefore, although a policy or custom need not receive formal approval, the plaintiff must show actual or constructive knowledge of the unconstitutional policy or custom by a municipal policymaking body. Id. In their motion for summary judgment, Defendants demonstrate that no City policy or custom directly caused Musgrove’s constitutional injuries. First, the City shows that Cocoa Police Department Standard Operating Procedure 650 (“Procedure 650”) was in effect and enforced at the time of Musgrove’s arrest. (Doc. 47-8). Procedure 650 is the City’s official written Taser utilization policy and covers a wide range of topics, from 13 procedures on how and when to deploy a Taser to care and maintenance for the Taser.3 (Id.). Regarding use of a Taser, Procedure 650 provides extensive guidance, including that officers should only use a Taser “to prevent violent or escalating confrontations,” that an officer must loudly and clearly announce his intent to use a Taser, and that officers should avoid using Tasers in dangerous situations, such as when a suspect is standing on a rooftop, in water, or near flammable liquids. (Id. at pp. 2–4). Procedure 650 further mandates that an officer discharge his Taser “only until the threat is neutralized” and that he must stop discharging the Taser once the conduct justifying its use has ended. (Id. at p. 2). The City additionally shows that all officers who equip a Taser must also complete a comprehensive annual training program on its safe operation, which also encompasses the topics addressed by Procedure 650. (Id. at p. 7; Doc. 42-1). The City further shows that any custom of its police officers to disregard Procedure 650 or to otherwise improperly operate their Tasers was unknown to the City. (Doc. 43, pp. 13–14). In support, the City produces evidence that Officers McIntyre and Worthy have never been disciplined for using excessive force or for improperly operating their Tasers. (Doc. 34-1, 28:4–29:13; Doc. 38-1, 58:4–15). The City additionally shows that it investigates allegations of excessive force and disciplines officers who are found to have violated its policies regarding the use of force. (See Doc. 40-1, p. 3). Therefore, any custom of ignoring policies on the use of force would not have been condoned by the City. In her response, Musgrove argues that Procedure 650 is constitutionally inadequate and directly caused her constitutional injuries because the policy allows for 3 Procedure 650 is attached to this Order as Appendix A. 14 the “virtually unlimited use of tasers.” (Doc. 47, p. 15). Musgrove contends that Procedure 650 is deficient because it does not prohibit the repeated or prolonged use of Tasers against suspects and provides no caution on the risks of using a Taser. (Id. at pp. 15–16). Moreover, Musgrove submits that the City and its officers encouraged a custom of ignoring safe and lawful Taser practices. (Id. at p. 16). However, Musgrove’s arguments find no traction in the record. Procedure 650 directly contradicts Musgrove’s position that the City allowed “virtually unlimited use of tasers.” As discussed above, Procedure 650 offers extensive guidance on the use of Tasers, including specifically advising against the prolonged and repeated use of Tasers and thoroughly cautioning officers on conditions which may render Taser use too dangerous. (Doc. 47-8). Musgrove also produces no affirmative evidence indicating that there was a custom—much less knowledge by the City of such a custom—of ignoring Procedure 650 or the mandatory annual Taser training. Indeed, the record produced by Musgrove indicates that the circumstances of her arrest appear to be a random or isolated incident for which the City cannot be held accountable. Depew, 787 F.2d at 1499. For these reasons, Musgrove fails to genuinely dispute that no City policy or custom directly caused her constitutional injuries. b. Failure to Train A municipality’s failure to train its employees regarding their duty not to violate citizens’ constitutional rights can also rise to the level of policy where the failure to train is the result of the municipality’s deliberate indifference toward constitutional rights. Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011); City of Canton, 489 U.S. at 388. A plaintiff can prove a municipality’s deliberate indifference in one of two ways. First, a municipality is deliberately indifferent to constitutional rights where there is a widespread 15 pattern of similar constitutional violations by untrained employees. Connick, 131 S. Ct. at 1360. Alternatively, a municipality can be liable for a single incident where “the need for more or different training is so obvious, and the inadequacy [in training is] so likely to result in the violation of constitutional rights, that the policymakers . . . can reasonably be said to have been deliberately indifferent.” City of Canton, 489 U.S. at 390. However, showing that the level of training provided is not optimal or even preferable is not enough to rise to the level of deliberate indifference. Id. at 391; Marrero-Rodriguez v. Municipality of San Juan, 677 F.3d 497, 503 (1st Cir. 2012) (“[T]he fact that training is imperfect or not in the precise form a plaintiff would prefer is insufficient to [show deliberate indifference].”). Defendants demonstrate that the City’s mandatory annual Taser training does not amount to deliberate indifference. Defendants again point to Procedure 650 and show that the training program mirrors the policy’s guidance. (Doc. 43, p. 15). That is, the City shows that its mandatory annual training covers subjects such as using a Taser only to subdue violent and escalating conduct, deploying a Taser only until the conduct which justified its deployment has ended, avoiding repeated use of a Taser, and allowing a subject to comply before using a Taser multiple times. (Doc. 42-1). Defendants therefore contend that the City’s Taser training cannot be so obviously deficient and so likely to lead to constitutional violations as to evince deliberate indifference toward constitutional rights. Defendants further argue that Musgrove cannot cite any other incident—let alone a widespread pattern of incidents—where its officers unlawfully used Tasers. Thus, Defendants conclude that the City could not have had any knowledge that its training was constitutionally insufficient. 16 In response, Musgrove essentially relies on the bald conclusion that the City’s training was inadequate. (Doc. 47, p. 16). Musgrove does not produce any other incident of similar constitutional violations by the City’s officers and again argues that the City should have trained its officers against the prolonged and repeated use of Tasers, despite the fact that both Procedure 650 and the City’s mandatory annual training explicitly address these topics. To the extent Musgrove contends that the City’s training program should also reference manufacturer warnings and instructions, the fact that training does not take the form she prefers is not enough to rise to the level of deliberate indifference. Marrero-Rodriguez, 677 F.3d at 503. Because the City’s mandatory annual Taser training is not otherwise so obviously inadequate or so likely to lead to constitutional violations, Musgrove also fails to genuinely dispute that the City’s training shows no deliberate indifference toward constitutional rights. Accordingly, summary judgment will be granted in favor of the City on Count I. 3. Punitive Damages Against Officers McIntyre and Worthy One final matter remains as to Count I: Defendants move for summary judgment on the issue of whether Musgrove can recover punitive damages from Officers McIntyre and Worthy. (Doc. 43, p. 22). It is well-settled that a plaintiff may recover punitive damages in a § 1983 lawsuit. Smith v. Wade, 461 U.S. 30, 35 (1983). In order to do so, the plaintiff need only show that the defendant acted with “reckless or callous disregard” for her constitutional rights. Fields v. Corizon Health, Inc., 490 F. App’x 174, 186 (11th Cir. 2012) (per curiam). Here, Defendants merely conclude, without citing any evidence, that Musgrove cannot show sufficiently reckless or callous conduct by Officers McIntyre and Worthy to warrant an award of punitive damages. Presumably, Defendants rely on the officers’ 17 respective accounts of the night in question. However, as previously discussed in this Order, the parties’ recollection of what happened vary drastically. Musgrove maintains that the officers tased her without warning, tackled her, tased her several more times although she never resisted, handcuffed her, laid her in the grass outside, and sprayed her in the face with pepper spray all in order to complete an arrest for breach of the peace. (Doc. 39-1, 37:6–67:25). Musgrove’s version of the facts is corroborated by both her boyfriend and her neighbor, (Doc. 35-1, 23:12–24:17; Doc. 36-1, 47:7–48:17, 50:12– 58:17, 61:20–64:25), and the log for the Taser used against Musgrove confirms that the Taser was discharged several times within two minutes, (Doc. 47-2). Accordingly, there is copious record evidence that would allow a rational jury to conclude that Officers McIntyre and Worthy acted with reckless or callous disregard for Musgrove’s constitutional rights. Defendants’ motion for summary judgment will therefore be denied on the issue of punitive damages. B. Count IV: Intentional Infliction of Emotional Distress Against Officers McIntyre and Worthy Count IV alleges a claim for intentional infliction of emotional distress (“IIED”) against Officers McIntyre and Worthy. In order to recover for IIED, Florida law requires a plaintiff to prove four elements: (1) the defendant acted intentionally or recklessly, (2) the defendant’s conduct was outrageous, (3) the defendant’s conduct caused emotional distress to the plaintiff, and (4) the plaintiff’s emotional distress was severe. Stewart v. Walker, 5 So. 3d 746, 749 (Fla. Dist. Ct. App. 2009). Defendants move for summary judgment on the grounds that Musgrove cannot prove that the conduct she alleges is sufficiently outrageous. (Doc. 43, pp. 22–23). 18 “The standard for ‘outrageous conduct’ is particularly high in Florida.” Patterson v. Downtown Med. & Diagnostic Ctr., Inc., 866 F. Supp. 1379, 1383 (M.D. Fla. 1994). Conduct is outrageous where “it is so extreme in degree as to go beyond the bounds of decency and be deemed utterly intolerable in a civilized community.” Clemente v. Horne, 707 So. 2d 865, 867 (Fla. Dist. Ct. App. 1998) (quoting Restatement (Second) of Torts § 46 cmt. d). It is insufficient to show tortious or criminal intent and “it is not enough [to show] that the defendant intended to inflict emotional distress.” State Farm Mut. Auto. Ins. Co. v. Novotny, 657 So. 2d 1210, 1212 (Fla. Dist. Ct. App. 1995). Instead, “the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’” Clemente, 707 So. 2d at 867 (quoting Restatement (Second) of Torts § 46 cmt. d). Ultimately, the determination of outrageousness is intensely fact sensitive. See Johnson v. Thigpen, 788 So. 2d 410, 413–14 (Fla. Dist. Ct. App. 2001). In challenging whether Musgrove alleges sufficiently outrageous conduct, Defendants take issue with a specific allegation in the Amended Complaint that one of the officers threatened to give Musgrove a “tune up.” (Doc. 43, p. 23). Defendants contend that this singular comment cannot amount to outrageous conduct. However, Defendants ignore the bulk of the remaining conduct at issue in this case—namely, that Officers McIntyre and Worthy shot Musgrove with a Taser without warning, continued shocking Musgrove despite the fact that she never resisted, never posed a threat to anyone, and never attempted to flee, and pepper sprayed Musgrove in the face while she was lying compliantly in handcuffs on the ground. Accordingly, the Court finds that Defendants fail to carry their initial burden of showing no genuine dispute of material fact 19 on whether the conduct Musgrove alleges was sufficiently outrageous to form an IIED claim. Defendants’ motion for summary judgment will be denied as to Count IV. C. Count V: Negligent Infliction of Emotional Distress Against the City Count V alleges a claim for negligent infliction of emotional distress (“NIED”) against the City.4 Musgrove premises her NIED claim on the theory that the City is liable for Officer McIntyre and Worthy’s negligent infliction of physical impacts against her during the arrest. (Doc. 23, ¶¶ 46–53; see also Doc. 47, p. 18). In general, an employer such as the City can be held liable for the negligent conduct of its employees. Lewis v. City of W. Palm Beach, No. 06-81139-CIV, 2008 WL 763250, at *10 (S.D. Fla. Mar. 19, 2008) (subsequent history omitted). “However, Florida law does not recognize a cause of action for the negligent use of force in making an arrest.” Feliciano v. City of Miami Beach, 847 F. Supp. 2d 1359, 1367 (S.D. Fla. 2012). Indeed, Florida courts are clear that “it is not possible to have a cause of action for ‘negligent’ use of excessive force because there is no such thing as the ‘negligent’ commission of an ‘intentional’ tort.” City of Miami v. Sanders, 672 So. 2d 46, 48 (Fla. Dist. Ct. App. 1996), review denied, 683 So. 2d 484 (Fla. 1996); cf. Lewis v. City of St. Petersburg, 260 F.3d 1260, 1263 (11th Cir. 2001) (holding that Florida law recognizes 4 Although no party raises the issue, the Court finds that sovereign immunity does not bar Musgrove’s state law NIED claim against the City. Generally, Florida municipalities such as the City are immune from tort liability. See Fla. Const. art. X, § 13. However, the State of Florida has waived sovereign immunity for its municipalities under circumstances where a private person could be held liable for the conduct alleged. Fla. Stat. § 768.28(1). Nevertheless, this limited waiver of sovereign immunity will not apply—and therefore a lawsuit will be barred—where the tortious conduct the plaintiff describes derives from the municipality’s performance of a discretionary function. Lewis v. City of St. Petersburg, 260 F.3d 1260, 1262 (11th Cir. 2001). It is well-settled that an officer’s conduct in effecting an arrest does not constitute discretionary conduct that will bar a lawsuit on the grounds of sovereign immunity. Id. at 1264–65. 20 negligence claims against police only when the negligent conduct occurs “separate and distinct from an excessive force claim”). Because Musgrove’s NIED claim arises directly out of a claim that the City is responsible for Officer McIntyre and Worthy’s negligent use of force, it is not cognizable under Florida law. The Court will therefore grant summary judgment in favor of the City on Count V. IV. CONCLUSION For the aforementioned reasons, it is ORDERED AND ADJUDGED that Defendants’ Motion for Summary Judgment (Doc. 43) is GRANTED IN PART and DENIED IN PART as follows: 1. As to Count I: Defendants’ Motion for Summary Judgment is GRANTED in favor of Defendant City of Cocoa, Florida only. Defendants’ Motion for Summary Judgment is otherwise DENIED. Defendants Brandon McIntyre and Alan Worthy shall proceed to trial on Count I. 2. As to Count IV: Defendants’ Motion for Summary Judgment is DENIED. 3. As to Count V: Defendants’ Motion for Summary Judgment is GRANTED. DONE AND ORDERED in Orlando, Florida on September 14, 2015. Copies furnished to: Counsel of Record 21 APPENDIX A 22 24 25 26 29

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