Opinion
Case No. 04-23250-CIV-MOORE.
September 19, 2005
ORDER
THIS CAUSE came before the Court upon Defendant Miami-Dade County's Amended Motion to Dismiss Action with Prejudice (DE #31).
UPON CONSIDERATION of the motion and the pertinent portions of the record, and being otherwise fully advised in the premises, the Court enters the following Order.
BACKGROUND
This case arises out of the murder of Plaintiff Sandra Wilson ("Wilson"). The Defendant is Miami-Dade County (the "County"). The facts of the Complaint are as follows: Sandra Wilson and Officer Leon Storr, both members of the Miami-Dade Police Department ("MDPD"), were engaged in a 15-year intimate relationship that ended in early 2003. Third. Am. Compl. at ¶ 6, 9. Upon termination of their relationship Storr became emotionally upset and began stalking Wilson. Id. at ¶ 9, 10. Plaintiff alleges that Storr's emotional problems were known to his direct supervisors in the Miami-Dade Police Department, Lieutenant Tony Perez ("Perez") and Sergeant Mario Sanchez ("Sanchez"). Id. at ¶ 11. Sanchez and Perez visited Storr at his residence and suggested that Storr see the MDPD psychologist. Id. When Storr advised his supervisors that he could not get an appointment Sanchez suggested that he request an emergency appointment. Id. Storr used his firearm to stalk Wilson by calling her at work and firing warning shots into the phone. Id. at ¶ 13. Storr also showed up intoxicated at a party attended by other members of the MDPD and displayed his firearm. Id. at ¶ 14. Storr told other County employees that he was distraught over his breakup with Wilson and "couldn't take it anymore," that his "life was not worth anything," and that he had "nothing to live for." Id. at ¶ 15. During this period, Storr was permitted to retain his firearm and to remain on active police officer status. Id. at ¶ 12.
Ebony Wilson, brings this case as the natural daughter and personal representative of the estate of the deceased Sandra Wilson.
Wilson requested a meeting with the Chief of the Administration and Technology Division of the MDPD, Chief J.D. Patterson ("Patterson") where she complained of Storr's harassment. Id. at ¶ 16. Wilson asked and Patterson agreed to intervene on her behalf. Id. Patterson met with Storr, whereupon Storr advised Patterson that Wilson was "still interested" in him and he thought the relationship could be "rekindled." Id. at ¶ 17. Plaintiff further alleges that according to his MDPD personnel profile, Storr was willing to distort facts, overly deny personal fault, was prone to accumulated tension and was capable of explosive expressions of hostility under accumulated stress.Id. at ¶ 19. Storr's attempt to convince Patterson that Wilson was still interested in him was a red flag that Storr needed psychological help, suspension or reassignment within the department as well as confiscation of his firearm. Id. at ¶ 20.
Plaintiff alleges that notwithstanding the MDPD's knowledge that Storr had severe emotional problems, missed work and court, avoided psychological treatment and harassed Wilson over their failed relationship, the MDPD took no steps to protect Wilson or prevent Storr from harming Wilson. Id. at ¶ 18, 20. Plaintiff alleges that due to Director Carlos Alvarez's ("Alvarez") failure to train and/or supervise the employees of the MDPD in the detection and/or treatment of officers such as Storr, as outlined in the MDPD manual, Alvarez, as the MDPD's policy maker was deliberately indifferent to the constitutional rights of Wilson to be protected from dangerous officers such as Storr. Id. at ¶ 21, 22.
On Sunday June 29, 2003, approximately three weeks after Storr's conversation with Patterson, Storr drove to Wilson's home in North Miami Beach, Florida, shot her to death and committed suicide. Id. at ¶ 23.
Wilson alleges three bases for liability against the County. Count I alleges a claim for the County's violation of Wilson's rights under the Fifth and Fourteenth Amendments of the United States Constitution and under 42 U.S.C. § 1983. Count II alleges a claim for wrongful death, negligent retention and negligent supervision of Storr against the County. Count III alleges a claim against the County for wrongful death and negligent implementation of the MDPD policy for psychological screening, monitoring and early identification of personnel with emotional or stress related problems.
DISCUSSION
1. MOTION TO DISMISS STANDARD
A motion to dismiss for failure to state a claim merely tests the sufficiency of the complaint; it does not decide the merits of the case. Milburn v. United States, 734 F.2d 762, 765 (11th Cir. 1984). On a motion to dismiss, the Court must construe the complaint in the light most favorable to the plaintiff and accept the factual allegations as true. SEC v. ESM Group, Inc., 835 F.2d 270, 272 (11th Cir. 1988). Further, the Court should not grant a motion to dismiss "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (citations omitted); South Fla. Water Mgmt.Dist. v. Montalvo, 84 F.3d 402, 406 (11th Cir. 1996). Specifically, "[i]t is a well-settled principle of law that a complaint should not be dismissed merely because a plaintiffs allegations do not support the particular legal theory he advances, for the court is under a duty to examine the complaint to determine if the allegations provide for relief on any possible theory." Bowers v. Hardwick, 478 U.S. 186, 201-02 (1986) (Blackmun, J., dissenting) (quotations omitted); see Brooks v. Blue Cross Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997). Nonetheless, to withstand a motion to dismiss, it is axiomatic that the complaint must allege facts sufficiently setting forth the essential elements of a cause of action.
II. ANALYSIS
A. Deprivation of Civil Rights (Count I)
Defendant argues that Plaintiff has failed to state a claim for a violation 42 U.S.C. § 1983. Although municipalities can be sued under § 1983, liability must be predicated upon more than a theory of respondeat superior. To establish governmental liability based on the acts of an employee a plaintiff must show that the employee's action "implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers," or is "pursuant to governmental `custom' even though such custom has not received formal approval through the body's official decision-making channels." Fundiller v. City of Cooper City, 777 F.2d 1436, 1442 (11th. Cir 1985) (citing Monell v. Dept. of Social Services, 436 U.S. 658, 690 (1978)).
Defendant contends that Plaintiff has merely alleged the existence of a Manual that includes policies addressing (1) psychological screening and services for police employees; (2) workplace violence issues; and (3) complaints against police employees, including subsequent counseling and discipline. Def. Mot. to Dismiss at 4. Furthermore, Defendant argues, while formal mechanisms for complaints existed, Plaintiff did not invoke the formal policies that would have triggered an investigation into Storr. Second, Defendant contends that even if Chief Patterson should have initiated the complaint process after Wilson's informal complaint, there can be no municipal liability under a theory of respondeat superior. Id. at 5.
In opposition, Plaintiff argues that "the heart of the County's argument is that because Wilson failed to file any sort of complaint with the police department concerning her harassment, the County is not liable." Pl. Opp. at ¶ 2. Plaintiff argues that its claim is not based on respondeat superior and is not based on the claim that Chief Patterson failed to initiate the complaint process. Id. at ¶ 5. Rather, Plaintiff argues, its complaint is that Chief Patterson's inaction and thus the murder of Wilson were the result of the County's failure to train and a deliberate indifference to Wilson's dilemma. Id. "The 1983 action continues to be based on a failure to train and deliberate indifference." Id.
The Supreme Court has held that inadequate police training may provide a basis for section 1983 liability only where failure to train amounts to deliberate indifference to the rights of persons with whom the [correctional officers] come into contact." Popham v. City of Talladega, 908 F.2d 1561, 1565 (11th Cir. 1990) (per curiam) (citing City of Canton v. Harris, 489 U.S. 378 (1989)).
"Municipal liability under § 1983 attaches where, and only where, a deliberate choice to follow a course of action is made from among various alternatives" by city policymakers. Only where a failure to train reflects a "deliberate" or "conscious" choice by a municipality-a "policy" as defined by our prior cases-can a city be liable for such a failure under § 1983." City of Canton, 489 U.S. at 388-89 (internal citations omitted).
To establish a "deliberate or conscious choice" or such "deliberate indifference," a plaintiff must present some evidence that the municipality knew of a need to train and/or supervise in a particular area and the municipality made a deliberate choice not to take any action. Gold v. City of Miami, 151 F.3d 1346, 1350-1351 (11th Cir. 1998) (internal citations omitted). The Eleventh Circuit has held that without notice of a need to train or supervise in a particular area, a municipality is not liable as a matter of law for any failure to train and supervise. Furthermore, the municipality's knowledge of a need for training or supervision in a particular area arises out of knowledge or awareness of a history of widespread prior abuse or a prior incident in which constitutional rights were similarly violated. Id. at 1351 (surveying cases). Absent such evidence of prior incidents, a municipality cannot have been deliberately indifferent to the need to train and supervise in a particular area unless the need was so obvious and the likelihood of constitutional violations was highly predictable. Id. at 1351-52.
Thus far, such cases have been limited to the use of deadly force when firearms are provided to police officers. Gold v. City of Miami, 151 F.3d 1346, 1352 (11th Cir. 1998).
Plaintiff alleges that:
¶ 21 due to Alvarez's failure to train/or supervise employees of the MDPD in the detection and/or treatment of officers such at Storr, as outlined in the MDPD Manual, Alvarez as MDPD's policy maker, was deliberately indifferent to the constitutional rights of Wilson to be protected from dangerous officers such as Storr.
It appears from the allegations in Count I coupled with the allegations of ¶ 21 that Plaintiff is alleging that Patterson's failure to act was due to Alvarez's failure to train or supervise and the deliberate indifference of the MDPD. However, Plaintiff also repeatedly alleges that Patterson, in addition to Alvarez, was deliberately indifferent to the rights of Plaintiff due to the MDPD's failure to train and/or supervise their employees. ¶ 26, 27, 28,29, 34, 38. At one point Plaintiff alleges that the MDPD in addition to Patterson and Alvarez was deliberately indifferent to Plaintiff's "needs." ¶ 31, 32, 33, 35. Construing the facts in the light most favorable to the Plaintiff, as the Court must do at this juncture, it appears from the Complaint, that the supervisory liability is directed at Alvarez, who, as pleaded by Plaintiff, was the MDPD's policy maker. See Hill v. Wayland, 74 F.3d 1150, 1152 (11th Cir. 1996) (citing Pembaur v. City of Cincinnati, 475 U.S. 469 (1986) ("only those officials who have final policymaking authority may render the municipality liable under § 1983")). As best as this Court can tell from Plaintiffs various and inconsistent allegations, the constitutional violation alleged in Count I is that through the inadequate training and/or supervision of Patterson, the MDPD through Alvarez, its policy maker, was deliberately indifferent to Plaintiff's constitutional right to be protected from being murdered by Storr.
Construing the Complaint in the light most favorable to Plaintiff, it appears that Plaintiff has stated a claim for a civil rights violation based on deliberate indifference and not, as Defendant argues, respondeat superior. Plaintiff has not alleged that there was a history of widespread prior abuse that put Alvarez on notice of the need for improved training or supervision. Nevertheless, Plaintiffs pleading is sufficient to survive a motion to dismiss. See Leatherman v. Tarrant County et al., 507 U.S. 163 (1993) (reversing the dismissal, on the basis of inadequate pleading, of a claim for failure to adequately train, specifically rejecting a heightened pleading standard in § 1983 actions for failure to train and rejecting the argument that Plaintiff must do more than plead a single instance of misconduct).
To the extent that the Miami-Dade County was aware of other incidents of similar conduct, this knowledge supports a theory that there was a failure to supervise or train. See Gold, 151 F.3d at 1350-51 (deliberate indifference established by knowledge of similar prior incidents). The sufficiency of any knowledge, if knowledge is proven upon further factual development, can be tested if properly raised in a motion for summary judgment. Accordingly, Defendant's Motion to Dismiss Count I is DENIED.
B. Negligent Supervision/Retention (Count II)
In Count II Plaintiff alleges a wrongful death claim against the County for negligent retention and supervision of Storr.
Negligent supervision of an agent has long been recognized as a basis for tort liability. Florida. Storm v. Town of Ponce Inlet, 866 So. 2d 713, 716 (Fla.Dist.Ct.App. 2004), review denied, 879 So. 2d 624 (Fla. 2004). Florida courts have also recognized this tort in cases involving the state or one of its agencies as a defendant Id. at 717; see also Dade County v. Martino, 710 So. 2d 20 (Fla.Dist.Ct.App. 1998) (recognizing that negligent retention or supervision of police officers or deputies is a viable tort which could be brought against the state or a municipality in a proper case); Watson v. City of Hialeah, 552 So. 2d 1146 (Fla.Dist.Ct.App. 1989) (same).
Negligent supervision occurs when during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicated his unfitness, and the employer fails to take further actions such as investigation, discharge, or reassignment. Garcia v. Duffy, 492 So. 2d 435, 438-39 (Fla.Dist.Ct.App. 1986).
The plaintiff must allege facts sufficient to show that once an employer received actual or constructive notice of problems with an employee's fitness, it was unreasonable for the employer not to investigate or take corrective action. Id. at 441. The employer's liability for negligent upervision is not, however, unlimited; not only must the employer owe a duty to the plaintiff, but the breach of that duty must be the proximate cause of the plaintiffs harm. Watson, 552 So. 2d at 1149. There must be a connection and foreseeability between the employee's employment history and the current tort committed by the employee. Id.; Dickinson v. Gonzalez, 839 So. 2d 709, 713-14 (Fla.Dist.Ct.App. 2003) (citing Island City Flying Serv. v. Gen. Elec. Credit Corp, 585 So. 2d 274, 277 (Fla. 1991)).
Defendant makes three arguments in moving to dismiss this count. First, Defendant argues that the County was never put on notice because Wilson failed to invoke the formal complaint mechanisms available to her. Def. Mot. at 5-6. Second, Defendant argues that under Fla. Stat. § 768.28(9)(a), the County is not liable for wrongful acts taken by employees either (i) outside the scope of employment, (ii) with malicious purpose; or (iii) in wonton and willful disregard of the safety of others. Def. Mot. at 6. Defendant argues that because Storr's actions were such acts, the sole remedy in these circumstances would be against Storr's estate. Third, Defendant relies on Watson, 552 So. 2d 1146 (Fla.Dist.Ct.App. 1989) for the proposition that "[a] city cannot be held liable for the heinous crime the officer[s] committed." Def. Mot. at 6-7 (citing Watson, 552 So. 2d at 1149). In that case two police officers used their police badges, "right cards," radios to enter a residence and murder two individuals. In addressing the tort of negligent retention, the court concluded that, "as a matter of law, [a] city cannot be held liable for the heinous crime the officer[s] committed" and thus the plaintiffs claim for negligent retention must fail.Id.
Plaintiff simply does not address Defendants first two arguments. In response to Defendant's third argument, Plaintiff contends that Watson is distinguishable because in this case, Patterson was on notice of the harassment of Wilson. The County therefore had a duty to follow procedure and report the situation so that there could be a threat assessment; departmental retraining order; mandatory fitness for duty evaluation and referral to the domestic crimes unit pursuant to the policy Manual. Pl. Opp. at ¶ 7-8. Whereas in Watson it was unforeseeable that the officers would commit an off-duty murder, here where instances of harassment were brought to the attention of a supervisor, foreseeability and direct casual connection is established. Id.
As to Defendant's first argument, Defendant has failed to cite any case law for the proposition that in order to state a claim for negligent supervision or retention, Plaintiff must have followed the formal grievance procedures set forth in an county's manuals.
Defendant's second argument is that Plaintiff's claim — which is fundamentally based on Storr's murder of Wilson — involves a deliberate intent to injure, and is therefore barred by Fla. Stat. § 768.28(9)(a). As Plaintiff is asserting a claim involving negligence and not a claim involving a deliberate attempt to injure, the Court need not address the County's argument with respect to Fla. Stat. § 768.28 (9)(a). This argument is misplaced.
As to Defendant's third argument, this Court, finds Defendant's argument as to the application of Watson to the instant case unpersuasive. In stating that "as a matter of law, [a] city cannot be held liable for the heinous crime the officer[s] committed" the Watson court was assessing the sufficiency of the evidence which showed that Plaintiff's injuries were "brought about by reason of the employment of the incompetent servant. " (Emphasis in original).
Thus, while this Court finds that Watson is factually relevant, Watson was not decided on a motion to dismiss. TheWatson court engaged in an assessment of the sufficiency of the evidence before it and found that Plaintiff was unable to prove proximate causation or foreseeability. Such an exercise is inappropriate for this Court to engage in on a motion to dismiss. At the very least, in this case, Plaintiff has pleaded proximate cause, notice and foreseeability. Third Am Compl. at ¶ 43, 44. Accordingly, Defendant's motion to dismiss Count II is DENIED.
C. Negligent Implementation of Policy (Count III)
Defendant argues that Count III must be dismissed because Plaintiff's claim for wrongful death is based on the allegedly negligent implementation of the Psychological Services Policy which is a part of the Miami-Dade Police Department Manual. Defendant argues that under Florida law a manual does not establish a tort duty of care to individual members of the public. Def. Mot. at 8 (citing Pollock v. Florida Dept. of Highway Patrol, 882 So. 2d 928, 936-937 (Fla. 2004); Trianon Park Condominium Ass'n v. City of Hialeah, 468 So. 2d 912, 918 (Fla. 1985)).
Plaintiff argues that the Court must reject Defendant's argument because this Court has previously ruled that, "Plaintiff has sufficiently alleged that Defendant's conduct placed Plaintiff in a "zone of risk" and thus owed Plaintiff a specific duty to either lessen the risk or see that sufficient precautions were taken to protect Plaintiff from the harm that the risk posed." P1. Resp. at ¶ 9-10 (citing Wilson v. Miami-Dade County, 370 F. Supp. 2d 1250 (S.D. Fla. 2005)).
A manual does not establish an independent tort duty of care to individual members of the public. Pollock v. Florida Dept. of Highway Patrol, 882 So. 2d 928, 936-937 (Fla. 2004) However, this Court previously found that a duty of care arose when Defendant placed Wilson in a "zone of risk." Therefore, the manual is not being used to independently establish a duty of care. Accordingly, Defendant's motion to dismiss Count III of the Complaint is DENIED.
CONCLUSION
Accordingly, based on the foregoing, it is
ORDERED AND ADJUDGED that Defendant Miami-Dade County's Amended Motion to Dismiss Action with Prejudice (DE #31) is DENIED.
DONE AND ORDERED.