pbso nurse arrest ruling

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No.1 1-80374-Civ-Hopkins

MARJORIE DEPALIS-LACHAUD,

Plaintiff,VS.

KENNETH E. NOEL, et al.,

Defendants.

F $ L Ct- Cw- 1 th ') D . C .

At 1 1 2 Bo ! 2

S T E t? () ?k ,k1 . L/& F:t ! .,4 O R 6f2 --CI-ERK tJ .S . f.71 Ci 1 . CT.

S . D . OF FLA . - W, R E1 .

ORDER GRANTING IN PART AND DENYING IN PART

DEFENDANTS' M OTION FOR SUMMARY JUDGMENT (DE 16) ANDGM NTING IN PART AND DENYING IN PART PLAINTIFF'S CROSS-M OTION FOR

PARTIAL SUM M ARY JUDGM ENT (DE 22)

THIS CAUSE is before this Courtuponthe pm ies' consentto magistratejudgejmisdiction

and an Order referring the instant case to the undersigned United States M agistrate Judge for tlnal

disposition. (DE 27, 28).

Presently beforethe Courtarethe parties' cross-motions for summo judgment. Defendants

filed their motion for summary judgment on December 15, 201 1. (DE 16). Plaintiff tsled her

response to Defendants' motion and a cross-motion for partial summaryjudgment on December 26,

201 1 . (DE 22). Thereafter, Plaintiff filtd a statement of facts (DE 45), and Defendants Gled

response/reply papers. (DE 58, 59, 60).These motions are now ripe for this Court's review.

BACKGROUND

Plaintiff initiated this civil rights lawsuit following an incident that occurred on the evening

of June 17, 2009, while she was working as a nurse at the U.S. Department of Veterans Affairs

Medical Center in Palm Beach County, Florida ($çV.A.''). See Amended Complaint (DE 12). On that

evening, a patient was admitted to the V .A. for injtuies he sustained in a car accident. Shortly

Case 9:11-cv-80374-JMH Document 61 Entered on FLSD Docket 05/11/2012 of 27

thereafter, at approximately 10:00 p.m., Defendant Noel, a deputy sheriff with the Palm Beach

County Sheriff s Department, arrived at the V.A. to conduct an impairment assessment of the

patienvdriver. See Defendant Noel's Dep. Tr. at p. 18-19, 21 (DE 17-1). After interviewing the

patient, Defendant Noel suspected that he had been driving under the intluence (($DUI''), and

Defendant Noel wanted to take a blood ssmple right away in order to confirm his suspicion. See

Noel Dep. Tr. at p. 24-25.

At approximately 10:30 p.m., DefendantNoel approached the nurses' station and demanded

that someone collect a blood sample from the patient. See Noel Dep Tr. at pages 26

, 28; Plaintifps

Dep. Tr. at pages 39-40 (DE 17-5). Plaintiff and another nurse, Linda Denison, explained to

Defendant Noel that the V.A.'S policy precluded them from collecting the blood. See Noel Dep. Tr.

at pages 43, 44; Plaintifps Dep. Tr. at pages 28, 35, 44, 93. Defendant Noel then advised Plaintiff

and Nurse Denison that he needed the blood snmple for his DUI investigation and that if they failed

to comply with his order, they would be obstructing his investigation, in violation of Florida Statute

j 843.02, and he would arrest them. See Noel Dep. Tr. at pages 28-30) Plaintiffs Dep. Tr. at pages

47, 49. Defendant Noel again directed Plaintiff to draw the patient's blood. See Noel Dep. Tr. at

page 30. According to Defendant Noel, he asked Plaintiff, ç$$ galre you going to draw this blood, yes

or no,' and she stated tNo.''' See Noel Dep. Tr. at page 30. However, according to Plaintiff, she

advised Defendant Noel that: çfW e're waiting for the doctor. The doctor has to make that decision.

W e're waiting for the doctor to see if he gives an order to get the blood. W e cannot take blood from

the patient without a doctor's order.'' See Plaintiff s Dep. Tr. at pages 44-45, 47.

In any event, it is undisputed that Defendant Noel placed Plaintiff in handcuffs and escorted

her outside to his patrol car. See Noel Dep. Tr. at pages 30-31; Plaintiffs Dep. Tr. at pages 50, 52

2


54, 57.1 W hen Defendant Noel rettmwd to the V.A., he handed Nurse Denison the blood collection

kit and she drew the blood from the patient. See Noel Dep. Tr. at pages 34-35

, 38. Thereafter,

Defendant Noel released Plaintiff from custody and issued her a notice to appear in court on the

obstruction charge. See Noel Dep. Tr. at page 42; Plaintiffs Dep Tr. at page 61. Ultimately, the

Palm Beach County State Attomey's Office declined to prosecute the charge. (DE 12 at ! 34, 91).

ln her Amended Complaint, Plaintiff alleges two counts of false arrest (Counts I and Il) and

two counts of false imprisonment (Cotmts Il1 and IV) against Defendant Noel, based on purported

violations of the Fourth Amendment and the Equal Protection Clause of the FourteenthAmendment.

(DE 12).2 Plaintiff also alleges a violation of htr Fourth Amendment right to be protected from an

unreasonable seizure against Defendant Bradshaw, in his official capacity as the Palm Beach County

Sheriff. Plaintiff contends that the Sheriff s Department promulgated an unlawful policy directing

deputies to çlobtain blood samples from medical staffs by any means, including arrest or

imprisonment.'' tcount VIIDE 12 at ! 92).Plaintiff alleges a claim of inadequate training and

supervision againstDefendant Bradshaw, whom she claims was deliberately indifferentto her Fourth

The smveillance video of the nurses' station from that evening (submitted by Plaintiffin support of her motion), shows Defendant Noel attempting to hand Plaintiff something(presumably, a blood collection kit) at 1 1:06 p.m. One minute later

, at 1 1:07 p.m ., the videoshows Defendant Noel behind tht nurses' station

, physically removing Plaintiff from her deskchair and handcuffing her. The video shows that Defendant Noel immediately escorted Plaintifffrom the emergency room . See DVD recording of V.A. emergency room surveillance video onJtme 17, 2009. (DE 37).

2 According to the Amended Complaint, Plaintiff is ç:a Black U.S. Citizen of Haitian

origin.'' (DE 12 at !3). In her motion papers, she claims that there is çça genuine issue of fact msto whether Defendant Noel selected Plaintiff for arrest based on her race

.'' (DE 22 at paje 14).Plaintiff alleges that drefendant Noel treated (herl differently than similarly situated whlte

persons, and Plaintiffs race or national origin was the motivating factor in Defendant Noel's

seledion of Plaintiff for arrest.'' (DE 22 at page 16).

3


Amendment rights (Count VI), as well as two negligence claims against Defendant Bradshaw

(Counts VI1 and VIIl). (DE 12).

In their motion for summmyjudgment, Defendants contend that Defendant Noel is entitled

to qualified immunity. (DE 16).According to their motion, Defendant Noel reasonably relied on

an opinion letter from the Palm Beach County State Attorney's Office, dated M ay 14, 2008, which

stated that ttgalny nurse who refusegs) to draw blood when requested by a law enforcement officer

is in violation of Florida Statute j 843.02 as actively obstructing a police officer in his lawful

investigation.'' (DE17-4). Defendants further contend that there is no record evidence to support

any of the claims in the Amended Complaint, and that because there was ttarguable probable cause

for (Plaintiffsj arrest . . . no claim is viable.'' (DE 16 at pages 5-6).

ln her opposition papers and cross-motion for sllmmary judgment, Plaintiff contends that

çtDefendants' reliance on the State Attorney's opinion as a basis for a claim of qualified immtmity

is not germane because it is well settled that only the courts are charged with intemretation of

statutes, and a general counsel or state attorney's opinion is not 1aw and cannot be the basis for

violation of Fourth or Fourteenth Amendment rights.'' (DE 22 at pages 6-7). According to Plaintiff,

Defendants' summary judgment motion should be denied because

DeputyNoel acted beyond the scope of his authority. He arrested and

detained Plaintiff out of frustration and anger, to set an exnmple, and

to compel the VA staff to draw the blood in violation of VA policyand medical protocol . . . Defendant Noel did not have arguabltprobable cause . . . Defendants knew or should have known they hadno authority to arrest and imprison for obstructing an officer

. . .

(DE 22 at pages 10-1 1). Plaintiff contends that she is entitled to summmyjudgment on her Fourth

Amendment claims in Counts 1, 111, V, and VI. Id.

4


DISCUSSION

A. Summary JudEment Standard as it Appli-vs in Oualified Immunity Cases

Rule 56 (c) of the Federal Rules of Civil Procedure authorizes s'lmmaryjudgment where the

pleadings and supporting materials establish that there is no genuine issue as to any material fact and

the moving party is entitled tojudgment as a matter of law. SeeAnderson v. f ibertyL obby, Inc., 477

U.S. 242, 248 (1986). The issue for the court is ltwhether the evidence presents a suffcient

disagreement to require submission to a (fact finder) orwhether it is so one-sided that one party must

prevail as a matter of law.'' Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (1 1th Cir. 1 997). The

moving party bears the burden of establishing the absence of a genuine issue as to any material fact.

Id If the moving party meets its burden, it is up to the non-moving party to proffer çfspecific facts

showing that there is a genuine issue for trial'' and that çtthe evidence is such that a reasonable jury

could return a verdict for the non-moving party.'' Anderson, 477 U.S. at 248) Celotex v. Catrett, 477

U.S. 317, 324 (1986). ln reviewing the evidence, the court must çsdraw a11 reasonable inferences in

favor of the non-moving party, and it may not make credibility determinations or weigh the

evidence.'' Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). See also

Anderson, 477 U.S. at 255 (the district court must remember that ççcredibility determinations, the

weighing of evidence, and the drawing of legitimate inferences from the facts arejury functions, not

those of ajudge'').

The usual summaryjudgment analysis set forth above is applied somewhat uniquely in cases

where a defendant raises a qualified immunity defense. Although çsldlisputes over reasonableness

are usually fact questions forjuriesy'' in qualified immunity cases, courts stare not concerned with the

correctness of the defendants' conduct, but rather the iobjective reasonableness' of their chosen


course of action given the circumstances confronting them at the scene.'' f ennon v. M iller, 66 F.3d

416, 421 (2d Cir. 1995).

Thus, ttif any reasonable trier of fact could 5nd that the defendants' actions were objectively

tmreasonable, then the defendants are not entitled to summo judgment. An ofticer's actions are

objectively unreasonable when no offcer of reasonable competence could have made the snme

choice in similar circumstances.'' ld. at 420-21. Accordingly, Ssif the court determines that the only

conclusion a rational jury could reach is that reasonable officers would disagree about the legality

of the defendants' conduct under the circumstances, summary judgment for the officers is

appropriate.'' Id. at 421 .

In evaluating a qualified immtmity defense, courts must consider the facts in the record. lf

Eithe factual record is not in serious dispute . . . (tlhe ultimate legal determination whether . . . a

reasonable police officer should have known he acted unlawfully is a question of law better left for

the court to decide.'' Id (quoting Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir. 1990:.

In cases where there are material questions of fact, these must be decided by ajury so that

the court can then apply the jury's factual determinations to the law and enter a post-trial decision

on the defense. Johnson v. Breeden, 280 F.3d 1308, 13 18 (1 1* Cir. 2002)(ç%he jury itself decides

the issues of historical fact that are determinative of the qualified immunity defense, butthejury does

not apply the law relating to qualifed immunity to those historical facts it finds; that is the court's

dllty :1 3

3 As an aside, the Court rejects Plaintiffs repeated assertion in her motion papers thatcertain findings the District Court made in its decision on the motion to dismiss

, are final andbinding. (DE 22 at pages 4, 6, 10, 12, 13). Plaintifps reliance on the District Court's denial of

Defendants' motion to dismiss (DE 1 1), which was decided prior to the benetk of discovery, is

misplaced because çdthe standards applicable to motions for summary judgment and motions to

6


B. Arguable Probable Cause and Oualified Immunity

Rather than evaluating whether DefendantNoel had actual probable cause to arrest Plaintiff,

the Court will first consider the less onerous question of whether Defendant Noel possessed

dtarguable probable cause'' to arrest her, thus entitling him to qualified immunity. See Dtzv/.ç v.

Williams, 451 F.3d 759, 764, n.7 (1 1t: cir. zoootcourtbegan analysis with arguable probable cause

because if there was an insufficient showing of the lesser burden, then there would clearly be an

insufficient showing to support the heightened burden of actual probable cause).

As the Eleventh Circuit has held, Edltlhe doctrine of qualified immunity provides that

tgovernment officials performing discretionary functions generally are shielded from liability for

civil damages insofar as their conduct does not violate clearly established statutory or constitutional

rights of which a reasonable person would have 11110m 1.9'' M oran v. Cameron, 362 Fed. Appx. 88,

92 (1 1th Cir. Jan. 21, zokollquoting Case v. Eslinger, 555 F.3d 1317, 1325 (1 1th Cir. 2009)). Once

an officer raises the affirmative defense of qualified immunity, the plaintiff then bears the burden

of showing that the officer is not entitled to it. Harper v. Perkinss 2012 W L 638518

, *2 (1 11 Cir.

Feb. 29, 2Q324(citing Keating v. City ofMiami, 598 F.3d 753, 762 (1 1th Cir. 2010:.

dismiss are significantly different.'' RJSG Properties, L L C v. M arbella CondominiumDevelopers L L C, 2010 W L 2890307, #4, n.5 (N.D. Fla. June 1 1, zololtdçalthough a plaintiff mayrest on its pleadings at the motion to dismiss stage

, it must do more in order to withstandsummary judgment scrutiny''ltcifing f achance v. Dufg 's Drah House, Inc

., 146 F.3d 832, 835(1 1th Cir. 1998)). See also Oravec v. Sunny Isles fltxtfry Ventures

, L.C., 2009 W L 6337121, *23(S.D. Fla. Jan. 12, 2009)(noting that çfthe standards of review are so differenf). Given that thelegal standards applied to motions to dismiss and summaryjudgment are separate and distinct

,this Court is not bound by the District Court's rulings during the earlier phase of this litigation.S

ee Brantley v. M uscogee Ctpl/zi/y School Dist., 201 1 W L 3706567, *6 (M .D. Ga. Aug. 24,

201 1); Waite v. Financial Recovery Services, Inc., 2010 WL 5209350, *6 (M.D. Fla. Dec. 16,2010:

.

7


Here, DefendantNoel's investigation of the suspected Dulaccident and his decisionto arrest

Plaintiff were ttdiscretionary functions,'' carried out in the cotlrse of his official job duties. See

Blackshear v. Cit.v ofMiami Beach, 799 F. Supp. 2d 1338, 1344 (S.D. Fla. 201 lltçriscretionary

authority includes the job-related powers and responsibilities that the public official has in the

general fulfillment of his official duties.'). See also L Ioyd v. Van Tassell, 3 18 Fed. Appx. 755, 759

(1 1th cir. Jan. 27, 2009)(making an m'rest is a discretionary function because it is part of a deputy's

duties); Brown v. Haddock, 201 1 WL 1655580, *3 (N.D. Fla. May 2, 201 lltarrest and tasing are

discretionarypowers if they are fçcarried out during the performance of (officers'l normaljob duties,

. . . within the scope of the authority delegated to them by their empLoynï'àlcitingRich v. Dollars 841

F.2d 1558, 1564 (1 1th Cir. 1988:. Thus, the Court must consider whether Defendant Noel's arrest

of Plaintiff violated a clearly established statutory or constitutional right of which a reasonable

person would have known.

The purported violation Plaintiff alleges, her Fourth Amendment right to be free from an

unreasonable seizure, is a clearly established constitutional right of which all law enforcem ent

officers are expected to be aware. See Davis v. Williams, 451 F.3d 759, 764, n.8 (1 1th Cir. 2006);

see also Ruizdelatorre v. City ofMiamiBeach, 2008 WL 538 1431, * 12 (S.D. Fla. Dec. 22, 2008)C$In

a false arrest context, this inquiry is straightforward as our binding precedent clearly holds that an

arrest made without probable cause violates the Fourth Amendmentl) . . .'').

As to whether Defendant Noel violated Plaintiffs Fourth Amendment right, that question

depends upon whetherthe seizure was reasonable, which in turn, depends upon a finding of probable

cause or arguable probable cause. M oran, 362 Fed. Appx. at 93.

Probable cause to arrest exists where the facts and circumstanceswithin the officers' knowledge and of which they had reasonably

8


trustworthy information are sufficient inthemselves to warrant . . . the

belief that an offense has been or is being committed . . .

Even if an officer errs in his judgment that probable cause to arrest exists, he may still be

entitled to the protections of qualified immunity based on arguable probable cause. As the Eleventh

Circuit has noted,

we do not automatically hold an officer liable for making an arrestthat, when seen with the benefit of hindsight

, tum s out not to havebeen supported by probable cause. Rather, if an officer violates theConstitution because he lacks probable cause

, the officer may still beshielded from liability under the second prong of the qualiGedimmunity analysis because his actions did not violate clearly

established statutory or constitutional rights of which a reasonableperson would have known.

ln wrongful arrest cases, we have defined the ççclearly-established''

prong as an Afarguable probable cause'' inquiry. TheCfclearly-established'' standard means that even if the arresting officerlacks probable cause, he is still entitled to qualified immunity if there

was arguable probable cause for the arrest, which is a more lenientstandard than probable cause.

ln determining whether arguable probable cause exists we askwhetherreasonable offkers inthe snme circumstances andpossessingthe same knowledge as the Defendant could have believed thatprobable cause existed to arrest. There is no arguable probable causeif no reasonable oftker could have found probable cause under thttotality of the circumstances.

Id at 93-94 (internal citations and quotations omitted).

ln theirmotion, Defendants contend that it was reasonable for DefendantNoel to believe that

he had probable cause to arrest Plaintiff based on: (i) Florida Statute 9316.193341), which permits

the forcible extraction of a blood sample if a 1aw enforcement oftker has reasonable cause to believe

that a driver involved in a serious accident was tmder the intluence of alcohol; (ii) Florida Statute

j 843.02, which criminalizes the obstruction of an officer's investigation; and (iii) the May 2008

9


opinion letter from the Palm Beach County State Attorney, which instructedhospitals to complywith

orders to draw blood or risk an arrest for obstruction of justice. (DE 16 at pages 4, 5, 7).

1. W as Defendant Noel's Reliance on State Attorney's

Opinion Letter Reasonah-le'l

Considering first whether Defendant Noel's reliance on the Palm Beach County State

Attorney's opinion letter, as giving him the authority to arrest Plaintiff, was reasonable, the Court

finds Cox v. Hainey 391 F.3d 25 ( 1't cir. 2004) to be instructive. There, the defendant officer

sought out the advice of the prosecutor before arresting the plaintiff on a drug charge. In his

subsequent j 1983 action for false arrest, the plaintiff argued that tsapolice officer should not be able

to insulate himself from liability for an erroneous determination simply because he obtained a

prosecutor's blessing to arrest upon evidence that did not establish probable cause.'' Id at page 34.

The First Circuit çsagreegd) with the appellant's premise that a wave of the prosecutor's wand

cnnnot magically transform an tmreasonable probable cause determination into a reasonable one.''

Id. However, the Court found that fdthe fact of the consultation and the purport of the advice

obtained should be factored into the totality of the circumstances and considered in determining the

officer's entitlementto qualified immunity.'' Id. tc#fngft/'tln#a v. Seitzinger, 363 F.3d 645, 648 (7th

Cir. zoo4ltpre-arrest consultation with a prosecutor may lend reasonableness to an officer's

conclusion that probable cause exists and, thus, may help to establish qualifed immtmity); see also

Dixon v. Wallowa Col/ary, 336 F.3d 1013, 1019 (9th Cir. 2003);Wadkins v. Arnold, 214 F.3d 535,

542 (4th Cir. zoooltpre-seizure consultation with a prosecutor is a factor to be considered in

determining an offcer's entitlement to qualified immunity). Thus, the First Circuit concluded that

there is ttsome room in the qualified immunity calculus for considering both the fact of a pre-arrest

consultation and the purport of the advice received.'' Cox, 391 F.3d at 35. The Court cautioned,


however, that tsconsultation comprises only one factor, nmong many'' and that the çtprimary focus

continues to be the evidence about the suspect and the suspected crime that is within the oftker's

ken.'' Id

Applying the analysis used by the Circuit Courts, this Court will consider Defendant Noel's

reliance on the Palm Beach Cotmty State Attorney's opinion letter as a factor in its evaluation as to

whether, under the totality of the circumstances, a reasonable offcer would have believed there to

be probable cause to arrest Plaintiff.

The opinion letter relied upon by Defendant Noel is dated M ay 14, 2008, and concludes with

a signattlre line for Barry E. Krischer, as the then-palm Beach Cotmty State Attorney

, but is

unsigned. See Letter dated M ay 14, 2008 (DE 17-4). lt appears to be a form letter in that the

addressee is blnnk and the letter begins frear (Name).'' Id The letter, dated one year prior to the

incident described in the Amended Complaint, states that it is in response to EGreportgs) that several

area hospitals have interfered with (law enforcement's) Driving Under the Influence (D.U.I.)

Investigations.'' Id The letter advises local hospitals of a law enforcement officer's right under Fla.

Stat. j 316.1932 to request that blood samples be drawn in DUI investigations. 1d. It states that

lçgalny nurse who refuselsj to drawblood when requested by a law enforcement officer is in violation

of Florida Statute j 843.02 as actively obstructing a police offcer in his lawful investigation.'' Id

The letter concludes, ç$I truly would not want to see law enforcement frustrated to the point of

making an arrest for obstructing a police officer's official investigation.'' Id

The Court is troubled by the fact that the opinion letter cites only the Florida Statute giving

1aw enforcement officers the right to collect blood samples from DUl suspects, as the legal basis for

the opinion. The opinion letter does not cite to any case law establishing that a ntlrse's refusal to


comply with an officer's request for a blood snmple constitutes an obstruction ofjustice tmder Fla.

Stat. j 843.02.

It is also significant that the opinion letter was not written specitically in response to the

underlying incident. Rather, the letter was a form letter, purportedly sent to hospitals throughout the

County, in response to what 1aw enforcement perceived as uncooperative behavior by hospital staff

See Afsdavit of Elizabeth Parker, Former Chief Assistant State Attorney (DE 20-1). Thus, this case

is distinguishable from those where a police offcer sought advice from a prosecutor immediately

prior to effecting an arrest. Here, Defendant Noel did not contact the prosecutor's offce in an effort

to convey the specific facts of the situation he encountered at the V.A. and seek advice, prior to

arresting Plaintiff on the evening of June 17, 2009.4

The operative questionbefore the Court is whether DefendantNoel's reliance on the opinion

letter was objectively reasonable or whether a reasonable officer lûwould have cause to believe that

the prosecutor's advice was tlawed, off point, or otherwise untrustworthy.'' Cox, 391 F.3d at 36.

The Court finds that the legal authority of the letter is uncertain and that a reasonable ofscer

would have viewed it warily. In the absence of any legal precedent to support the opinion letter, the

Court concludes that it was not entitled to strict adherence in all situations.s An ofticer would be

4 Notably, Defendant Noel did contact the Palm Beach County State Attorney's Office

for advice a year or two earlier, when he encountered another nurse who purportedly refused

Defendant Noel's request to obtain a blood sample from a DU1 suspect. See Parker Affidavit at !(15

. At that time, the prosecutor agreed with Defendant Noel that the nurse's conduct was a

violation of Fla. Stat. j 843.02. Id Defendant Noel did not arrest that nurse, but instead, issued

a citation for obstruction, which the Palm Beach County State Attorney's Office ultimately

declined to prosecute. See Defendant Noel's Dep. Tr. at pages 40-42.

5 Even three years after the incident described in the Amended Complaint, there is noi

ndication that the Palm Beach County State Attorney's Offke has successfully prosecuted such a

case against a hospital employee. Likewise, it does not appear that the opinion presented in the

12


proceeding at his own peril, were he to place all his faith in a one-year-old, unsigned opinion letter

that fails to cite any case law, as a foolproof blanket method of handling such situations

. In any

event, the opinion letter would not relieve an oftker of his Sfduty to exercise (his) professional

judgment.'' Ié For these reasons, the Court finds that the opinion letter is not a factor that weighs

heavily in Defendant Noel's favor in determining whether, under the totality of the circumstances,

he is entitled to qualiûed immtmity as a matter of law.

2. W ould a R easonable Oflcer have Relied on Fla. Stat.j 316.1933

as giving him the Legal AuthoriW to Order the- co-llection of

a Blood Sam ple?

Section 316.1933 of the Florida Statutes provides as follows:

probable cause to believe that amotor vehicle driven by or in the actual physical control of a personunder the influence of alcoholic beverages

, any chemical substances,or any controlled substances has caused the death or serious bodily

injury of a human being, a law enforcement officer shall require theperson driving or in actual physical control of the motor vehicle tosubmit to a test of the person's blood for the purpose of determiningthe alcoholic content thereof . .

If a law enforcement offker has

Only a physician, certified parnmedic, registered nurse, licensed

practical nurse, othex personnel authorized by a hospital to drawblood, or duly licensed clinical laboratory director

, supervisor,technologist, or technicians acting at the requtst of a law enforcementoftker, may withdraw blood for the pumose of determining thealcoholic content thereof . . .

Fla. Stat. j 316.1933(1)(a), (2)(a).

The plain language of this statute makes clear that an officer can forcibly compel a driver

suspected of DU1 in a serious accident to submit to a blood test. However, as to the medical

professional charged with the task of collecting the blood sample, the statute employs permissive

letter has ever been challenged in the courts.


language, stating that a health care professional çsacting at the request'' of an officer ttmay withdraw

blood . . .'' 1d. (emphasis added).

Nothing in this statute requires a medical worker to obtain a blood sample from a DUI

suspect or specifically gives an officer the authority to order a hospital employee to take such a

snmple. Therefore, Defendant Noel's reliance on this statute as giving him probable cause to arrest

Plaintiff appears to be misplaced.

3. W ould a Reasonable Officer have Believed that there was

Probable Cause to Arrest Plaintiff under Fla. Stat. # 843.02?

çtW hether an arresting officer possesses probable cause or arguable probable cause naturally

depends on the elements of the alleged crime . . . and the operative fact pattern.'' Whittington v.

F/wa ofsurfjide, 490 F. Supp. 2d 1239, 1250 (S.D. Fla. zoo7llquoting Skop v. C# ofAtlanta, 485

F.3d 1 130, 1 137-38 (1 1th Cir. 2007:.

Here, the elements of Florida's obstruction ofjustice statute are as follows: Stgwlhoever shall

resist, obstruct, or oppose any officer . . . in the lawful execution of any legal duty . . . shall be guilty

of a misdemeanor of the first degree . . .'' Fla. Stat. j 843.02. See also Jessup v. Miami-Dade

Cbxnly, 440 Fed. Appx. 689, 693 (1 1th Cir. Sept. 1, 201 1)(çTo constitute obstruction of justice

,

under j 843.02, Florida Statutes, the officer must have been engaged in ç(12 the lawful execution (2)

of a legal duty; and g3) the defendant's action, by his words, conduct, or a combination thereof,

(must havel constituted obstmction or resistance of that lawful duty.'bàlquoting CEL v. State, 24

So.3d 1181, 1 185-86 (Fla. 2009:.

a. W as Defendant Noel's Order Lawful?

The Court will first consider whether Defendant Noel's order directing Plaintiff to collect

the blood sample was a lawful order, such that a reasonable officer in his position would have


believed that he had the apparent legal authority to issue such an order.

Examples of lawful orders, which when disobeyed have been found to support an arrest for

obstruction ofjustice, can be found in a number of Florida state court cases. See C.E.L . v. State, 995

So.2d 558, 561 (Fla. Dist. Ct. App. zoo8ltofficer issued a lawful order to the defendant to stop,

which the defendant refused to obey, thereby violating j 843.02); N IL v. State, 890 So.2d 514, 516

(F1a. Dist. Ct. App. 2005)(po1ice had reasonable suspicion to support their investigatory stop of

plaintiff during which they ordered him to sit and identify himself; plaintiff refused, and thus

violated j 843.02); ILA.P. v. State, 834 So.2d 237, 238-39 (F1a. Dist. Ct. App. zoozltplaintiff

refused to obey officers' lawful orders to leave the area, thereby obstructing them in their legal duty

of executing a search warrant); Billips v. State, 777 So.2d 1094, 1095 (Fla. Dist. Ct. App.

zoolltofficers lawfully ordered plaintiff to exit her vehicle in order to conduct a limited

investigation, and her refusal to do so obstructed their investigation); KA.C. v. State, 707 So.2d

1 175, 1 177 (Fla. Dist. Ct. App. 1998)(where officers had legal dutyto investigate the possibilitythat

plaintiff was truant, officers lawfully ordered plaintiff to provide information in response to their

questions; plaintiff refused in violation of j 843.02).

On the other hand, there are cases where courts have found that an offcer does not have the

legal authority to give aparticular order and, therefore, defiance of it will not support an obstruction

charge. For example, in C. I'r'r v. State, 76 So.3d 1093 (Fla. Dist. Ct. App. 201 1), officers asked

plaintiff to tsstep out of the street.'' ld Plaintiff refused, swore at the oftkers, and was arrested

under Fla. Stat. j 843.02. The court concluded that the facts did not support a finding of obstruction

of a legal duty. While lçltjhe oftkers's initial request that C.W , move a de minimus distance out of

the road was a reasonable part of theirjob as community safety officers . . . they had no legal duty

15


to insist on compliance and to enforce that insistence with arrest where the record shows that there

were no circumstances warranting this.'' 1d. at 1095-96. ln other words, the court found that the

plaintiff was not obligated to obey the officer's order. f#. at 1096. See also Barrios v. State, 807

So.2d 8 14, 8 15 (Fla. Dist. Ct. App. zoozltoff5cer lawfully stopped a car and arrested driver, but

admitted that he had no legal basis for detaining the ilmocent passenger; the court found that the

plaintiff/passenger was entitled to Siresist the officer's command to stand by the car'' and, thus, his

arrest on obstruction charges, for purportedly defying the ofticer's order by walking away, w as

unlawful).

Similarly, in Brown v. Haddock, 201 1 WL 1655580 (N.D. Fla. May 2, 201 1), the court

considered a case where officers were dispatched to ahome based on areport that two minor cousins

were fighting. W hen the mother of one of the minors arrived at the house and tried to find out what

was happening, the officer directed her to get back and go into the house. The mother refused and

remained outside near the ongoing investigation. The ofticerthen arrested her for obstruction under

j 843.02. ln the subsequent lawsuit for false arrest, the court fotmd that tçthe lawfulness of an order

that a person be sequestered inside while officers were on private property without a warrant is in

question,'' and concluded that, in the light most favorable to plaintiffs, the mother tçwas within her

rights to refuse to go inside the house.'' 1d. at *4 (citing Davis, 451 F.3d at 767). Accordingly, the

court found that her arrest for obstnzction under j 843.02 lacked probable cause. f#.6

6 A New York case involving a similar obstruction statute is also instructive regarding

the lawfulness of certain police orders. In People v. Ferreira, 807 N .Y.S.Zd 832 (N.Y. CityCrim. Ct. 2005), the court acknowledged the ççwell-settled principle that while the police

. . . havethe right to request citizens to answer voluntarily questions concerning tmsolved crimes

, theyhave no right to compel them to answer

.'' Thus, the defendant's refusal to cooperate with theofficer's investigation of a shooting and defendant's attempt to leave location

after the offkerinstructed him to stay, did not nmount to obstruction

. Id.


The case 1aw suggests that in addition to being lawful, an officer's order must be reasonable.

In Reese v. Herbert, 527 F.3d 1253 (1 1th Cir. 2008), the Eleventh Circuit considered whether there

was probable cause to arrest for a violation of the Georgia obstruction statute. That statute, which

is fairly similar to Florida's statute, requires a person to çtknowingly and willfully obstructl) or

hinderl) any 1aw enforcement officer in the lawful discharge of his official duties.'' Id at 1272

(citing O.C.G.A. 16-10-24(a)).There, the police arrested an individual who refused to obey the

officer's orders to leave the apartment complex where a crime was being investigated. The Eleventh

Circuit concluded that there was a lack of probable cause because an çtarrest for obstruction cnnnot

be predicated upon such a refusal to obey a command to clear the general area entirely beyond the

zone of police operation, which, in the circumstances described, was clearly an overly broad and

unreasonable demand that exceeded reasonable 1aw enforcement procedure and needs.'' Reese, 451

F.3d at 1273 (quotation and citation omitte+.

The nmount of time an officer allows for compliance with an order is also a factor the courts

consider. See Brown v. Haddock, 20 1 1 WL 1655580 at *4 (husband Elwas given no time to respond

to the officer's demand'' that he close the patrol car door and get away from the ca.r in which his wife

was handcuffed; court found he could not be guilty of refusing an order Sdif he had no time to

comply'); Coley v. State, 344 S.E.2d 490 (Ga. App. 1986)(officer directed Coleyto move away from

his truck and stop walking; Coley did not obey and was immediately arrested for obstruction;

appellate court overturned the conviction, fnding Coley did Sçnothing more than fail to respond

immediately'' to the oftker's orders).

Here, the Court finds that DefendantNoel's order for Plaintiff to extract ablood sample from

the DUI suspect without delay and without regard to the hospital's policy or procedures, w as not a


reasonable demand and that it ttexceeded reasonable law enforcement procedtlre and needs.'' Reese,

451 F.3d at 1273.

b. Did Plaintifrs Conduct Amount to Obstruction?

W hile the lawfulness of Defendant Noel's order hinges on its reasonableness and the extent

to which he is authorized to require individuals to take affirmative steps to assist him in an

investigation, the statements and conduct of the person to whom an order is directed are also relevant

to the probable cause inquiry.

lt has been held that j 843.02 is dçmeant to apply when a person willfully interferes with an

officer's lawful activities.'' Woods v. City ofplantation, 2008 WL 763788, *6 (S.D. Fla. March 19,

2008). Some Florida courts have determined that such interference 'çcan include aperson's inaction

. . .'' Woods, 2008 WL 763788 at *6 (citing JM v. State, 960 So.2d 813, 8 15 (F1a. Dist. Ct. App.

2007:. Other courts, however, have held that tsgtlhe mere failure to follow an officer's instructions

is () insuffcient to establish an officer's arguable probable cause in support of qualifed immunity.''

Stamos v. Brown, 2010 W L 2985659, *2-3 (S.D. Fla. July 28, zokollciting Davis v. Williams, 451

F.3d 759, 763 (1 1th Cir. 2006)).7

The Court must consider whether a reasonable officer in Defendant Noel's position would

have viewed Plaintiff's statements and/or conduct as sufficient to provide probable cause to arrest

her for obstructing his investigation.

7 But see Fla. Stat. j 843.06, which provides that when an individual is asked by anoftker, in his offkial capacity, to assist the oftker in his offkial duties of preserving the peace

,apprehending or securing a suspect, or assisting in the rescue or preventing the escape of an

arrestee, the individual must do so. See State v. Parish, 509 So.2d 1365, 1366 (Fla. Dist. Ct.App. lg87ltupholding j 843.06 as constitutional). Notably, this statute does not require aperson to assist an officer in the collection of evidence.

18


At this juncture, the Court snds a disputed issue of material fact. As the deposition

transcripts reveal,there are grave dispmities inhowthe parties describethepivotal encounterleading

up to Plaintiff s arrest. Defendant Noel testised that Plaintiff blatantly refused his order to obtain

the patient's blood; whereas Plaintiff testised that she advised Defendant Noel that they were

waiting to obtain approval from a doctor. Although this difference is significant, under either

version, the Court finds that a reasonable officer would not have believed there was probable cause

to arrest Plaintiff.

First, under Plaintiff s version of events, this Court is convinced that no reasonable offker

would have concludedthat he had probable cause to arresther because Plaintiff did not resist, refuse

or defy Defendant Noel in any way, verbally or physically.Under Plaintiff s version, she was

actually cooperating with Defendant Noel and simply imploring him to be patient a bit longer before

obtaining the blood. See Shipman v. Hamilton, 520 F.3d 775 (7tb cir. 2008)(the facts, viewed in light

most favorable to plaintiff-nurse, established that she actually assisted ofscer in his attempt to serve

process on patient and did not obstruct or impede him; thus, Court affirmed denial of officer's

summaryjudgmentmotionbased on qualified immunity). Indeed, evenFormerchief Assistant State

Attorney Elizabeth Parker stated that a direct refusal of an officer's order would be necessary to

support an arrest for obstruction of justice. See Parker Afsdavit at !( 14 (fçIt has always been my

opinion that any nurse who refuses to draw blood when requested by a 1aw enforcement ofûcer is

in violation of Florida Statute j843.02 as actively obstructing a police oftscer in his lawful

investigation.''lterrw/ltuf: added).

M ore signiticantly, even crediting DefendantNoel's version of events, that Plaintiff directly

defied his order to collect a blood sample, the Court ûnds that Plaintifps statements still did not


amount to obstruction because, as set forth above, Defendant Noel did not have the lawful authority

to issue the unreasonable order.As the cases discussed erlier in this decision explain, where an

offker lacks the ltgal authority to issue an order, the person at whom it is directed is within their

rights to refuse to comply. See Reese v. Herbert, 527 F.3d 1253 (1 1th Cir. 2008); Brown v. Haddock,

2011 WL 1655580 (N.D.FIa. May 2, 2011)) C. B( v. State, 76 So.3d 1093 (Fla. Dist. Ct. App. 2011);

Barrios v. State, 807 So.2d 814, 815 (F1a. Dist. Ct. App. 2002). Since Plaintiff was lawfully entitled

to refuse Defendant Noel's order, he did not have probable cause to arrtst her for allegtdly

obstructing his investigation. The Court finds Defendant Noel's response to the encounter to be

objectively unreasonable, and concludes that no oftker of reasonable competence would have

believed that he could lawfully arrest the ntlrse on duty under those circumstances.

The Court's conclusionis further supportedbycmse lawthathms intepretedobstmctionunder

j 843.02 as requiring more than mere words. Specifcally, Florida courts have concluded that

tdltlypically, physical conduct must accompany words to support a charge of obstruction.'' State v.

f egnosky, 27 So.3d 794, 797 (Fla. Dist. Ct. App. 2010). The following çigeneral proposition'' has

been applied to j 843.02:

If a police officer is not engaged in executing process on a person, is

not legally detaining that person, or has not asked the person for

assistance with an ongoing emergency that presents a serious threat

of imminent harm to person or property, the person's words alone can

rarely, if ever, rise to the level of an obstruction. Thus, obstructiveconduct rather than offensive words are normally required to supporta conviction under this statute.

D.G. v. State, 661 So.2d 75, 76 (F1a. Dist. Ct. App. 1995). See Davis v. Williams, 451 F.3d 759, 765

(1 1th Cir. 2006)(ttFlorida courts have generally held, with very limited exceptions, that physical

conduct must accompany offensive words to support a conviction under j 843.02;'' the exceptions

20


being: 1) serving process; 2) legally detaining a person; or 3) asking for assistanceltcf/ïag Francis

v. State, 736 So.2d 97, 99 n. 2 (Fla. Dist. Ct. App. 1999:. See also Ruizdelatorre v. City ofMiami

Beach, 2008 WL 538 1431, *9 (S.D. Fla. Dec. 22, 2008)(under ççwell established Florida law . . .

physical acts or conduct must accompany verbal protests or offensive words to support a conviction

tmder section $4?.Q2''4(citing Wilkerson v. State, 556 So.2d 453, 455-56 (Fla. Dist. Ct. App.

1990)(ççWe have no doubt that the use of çoppose' in conjunction with Sobstruct' manifests a clear

and unnmbiguous intentto proscribe only acts or conductthat operate to physically oppose an officer

in the performance of lawful duties.'')).8

Here, there is no evidence that Plaintiff engaged in any physical conduct to prevent

Defendant Noel from obtaining a blood snmple from the patient. lndeed, even under Defendant's

Noel's version, Plaintiff only defied him verbally. It is doubtful that these circumstances would fall

under the exception of an officer seeking assistance with an Gtongoing emergency,'' since there was

Court has identifedexamples from other jmisdictions regarding the sort ofeonduct that amounts to an obstructionof 1aw enforcement and that which does not

. CompareSmith v. State, 31 1 Ga. App. 184, 186, 715 S.E.2d 434, 437 (Ga. App. 201 lltdefendant's refusalto obey lawful order to roll down her window constituted obstruction); with State v. Gaines, 346Or. 160, 183, 206 P.3d 1042, 1057 (Or. 2009)(where arrestee 'çpassively refused to accompanythe officer from her cell to the booking area rand) she did nothing more . . . (tlhat mere refusalwas not enough to convict her of a violation'' of Oregon's obstmction statute which required a

çtphysical interference or obstacle'); and Howard v. United States, 966 A.2d 854, 857 (D.C.zoogltdefendant's refusal to obey officer's order to remove her hands from her pockets did notconstitute lsactively or physically opposging) or interferling) with the officers'') See also Peoplev. Copes 299 111. App. 3d 184, 189-191, 701 N .E,2d 165, 169-171 (111. App. 24 lgg8xdefendantwas charged with obstruction for locking herself and ajuvenile nmaway in at her restaurant andpreventing offkers from taking juvenile into custody; court found that defendant's çfpassiverefusal to acquiesce'' to officers' demands to unlock the door was not obstruction because tlthetenus çresistance' and fobstruct' implied a physical act or exertion

,'' and that çflrjefraining fromphysical action or failing to cooperate with the police is generally not considered the snme as

resisting or obstructing an ofscer').

8 The


no ddserious threat of imminent hnrm to (a) person or property.''The Court acknowledges that

Defendant Noel was facing the imminent threat of destruction of evidence - i.e., the blood/alcohol

content of the patient's blood - however, those circumstances are not covered by the exception and,

thus, do not justify an arrest for obstruction of justice based on words alone.

Accordingly, tht Court finds that Defendant did not have arguable probable cause entitling

him to tht protections of qualifitd immunity and that Plaintiff is entitltd to summary judgment on

her Fourth Amendment claims against him for false arrest (Counts I and 111).

C. Epual Protection Claim s

In the Amended Complaint, Plaintiff claims that Defendant Noel chose to arrest her, rather

than the Caucasian employees at the V.A., because of her race and/or national origin in violation of

the Equal Protection Clause of the Fourteenth Amendment. To support her claim of discriminatory

intent, Plaintiff points to an incident in 2007, when Defendant Noel was confronted with another

nurse's refusal to provide a blood sample from a DU1 suspect. That incident involved a nurse who

was a Caucasian male. According to Defendant Noel's deposition testimony, he did not arrest that

nurse for his refusal, but merely issued a Notice of Appearance on the obstruction charge. See

DefendantNoel's Dep. Tr. atpages 40-41, 57. Accordingto PlaintiffyDefendantNoel's inconsistent

reaction to these two Stsimilar situationksl'' underscores the different treatment he accords people

of different races and is proof of his discriminatory intent. (DE 22 at page 11).

However, in his deposition, Defendant Noel testiied that if Ntu'st Denison, or even the

doctor in charge, had directly refused his order to draw the blood, ht çûabsolutely'' would have

arrested them as well. Defendant Noel Dep. Tr. at page 54.

To establish an equal protection violation under the Fourteenth Amendment, Plaintiff must


show that Defendant Noel's actions: (1) had a discriminatory effect and; (2) were motivated by a

discriminatory purpose. See Washington v. Davis, 426 U.S. 229, 239-42 (1976)) Bradley v. United

States, 299 F.3d 197, 205 (3d Cir. 2002). tt''l'o show discriminatory effect, Plaintiff must demonstrate

that (she) is a member of a prottcttd class and that similarly situated members of an unprotected

class were treated dissimilarly. Plaintiff must then demonstrate discriminatory purpose, which

requires a showing that gdefendant) targeted (her) because of race.'' Hurn v. Unffe# States, 221 F.

Supp.zd 493, 500 (D.N.J. 2002).

Here, because there are factual disputes on this issue, the Court finds that it is not nmenable

to resolution on summary judgment.See Ward v. Members ofBd. ofcontrol of Eastern Michigan

University, 700 F. Supp. 2d 803, 819 (E.D. Mich. 2010)(court denied summaryjudgment on equal

protection claim where there was an issue of fact as to the defendants' tttl'ue motivation and intenf').

D. M unicipal Liability

Plaintiff contends that Defendant Bradshaw, in his official capacity as Sheriff of Palm Beach

County, is liable tmder j 1983for promulgating an tmlawful policy that violated her Fourth

Amendm ent rights.

Specitkally, Plaintiff alleges that ççDefendant Bradshaw had an oftkial policy for his

deputies, officers or agents to obtain blood samples from medical staffs by any means, including

arrest or imprisonment . . . DeftndantBradshaw's policy was unconstitutional, void or without legal

authority, without regard for individual rights or jurisdiction, constituttd deliberate indifference to

Plaintiff s rights, and caused or contributed to the violation of Plaintiff s rights.'' (DE 12 at ! 92,

94).

In order to impose j 1983 liability on a municipality, a plaintiff must identify a municipal


policy or custom that caused her injuries. See Gomez v. f ozano, 759 F. Supp. 2d 1335, 1338 (S.D.

Fla. 2011)(cfffng ##. ofcnty Com'rs v. frown, 520 U.S. 397, 403 (1997). A municipality can only

be liable if Stits custom or policy caused the municipal employees to violate a citizen's constitutional

rights.'' Gomez, 759 F. Supp. 24 at 1338 (quoting Goldv. f71 ofMiami, 151 F.3d 1346, 1350 (11th

Cir. 1998)). tt'l-o prove Section 1983 liability against a mtmicipality based on custom, a plaintiff

must establish a widespread practice that . . . is so permanent and well-settled as to constitute a

custom or usage with the force of law.'' Feliciano v. C# ofMiami Beach, - F. Supp. 2d - , 2012

WL 752150, *5 (S.D. Fla. March, 8, zokzllcitingst. L ouis v. Praprotnik, 485 U.S. 112, 127 (1988)).

Here, the fact that the County had a policy of threatening hospital staff with obstruction of

justice charges for failing to comply with orders to obtain blood snmples in DUI cases is established

by the existence of the Palm Beach County State Attorney's opinion letter, as well as Defendant

Noel's testimony that he previously issued a citation to another nurse for this same offense. It is

evident that this policy directly impacted the Fourth Amendment rights of hospital employees,

including Plaintiff. See Boardofcounty Com'rs ofBryan C/lfn/y, Okl. v. Brown, 520 U.S. 397, 404

(lgg7ltplaintiff must demonstrate that, through its deliberate conduct, tlthe municipality was the

lmoving force' behind the injury alleged . . . that the municipal action was taken with the requisite

degree of culpability and must demonstrate a direct causal link betweenthe municipal action and the

deprivation of federal rights).

Based on the existence of the Cotmty's unlawful policy, as described in the woefully

inadequate opinion letter by the Palm Beach County State Attorney's Ofsce, the Sheriff s

Depm ment knew or should have known implementation of the policy would inevitably lead to

violations of the Fourth Amendment for false arrest. Moyle v. Anderson, 571 F.3d 814, 817-18 (8th

24


Cir. 2009)(&$There are two basic circumstances under whichmunicipal liabilitywill attach: (1) where

a particular municipal policy or custom itself violates federal law, or directs an employee to do so;

and (2) where a facially lawful municipal policy or custom was adopted with ldeliberate

indifference' to its known or obvious consequences'). Moreover, the causation requirement is

satisfied based upon Defendant Noel's testimony that he directly relied upon the policy set forth in

the opinion letter as a basis for his decision to arrest Plaintiff. See Natale v. Camden Coxnf.y Corr.

Fac., 318 F.3d 575, 584 (3d Cir.zoo3ltwhere anentity Gtpromulgates a generallyapplicable statement

of policy and the subsequent act complained of is simply an implementation of that policy,'' the

municipal entity should be held liable under j 1983); Moyle, 571 F.3d at 818 (ûiW here an official

policy is itself unconstitutional or directs employees to take unconstitutional action, no evidence

beyond a statement of the policy and its exercise is necessary to establish j 1983 liability.'')

Therefore, Plaintiff is entitled to summary judgment on Cotmt V of the Amended Complaint.

E. Failure to Train/lnpdeguate Supervision

As for Countvl of the Amended Complaint, which seeksto impose municipal liabilityundex

51983 based on inadequate training and a failure to supervise, and Cotmts VIl and VlIl, which allege

negligent training and supervision under Florida state law, Plaintiff has presented inadequate

evidentiary support. It is well settled that any alleged inadequate training ttmust arise from the

municipality's deliberate indifference to the rights of those with whom the police interact.'' Gomez,

759 F. Supp. 2d at 1338 (citing f7@ ofcanton v. Harris, 489 U.S. 378, 388 (1989)). To establish

deliberate indifference, a plaintiff çfmust show a pattern of improper training and must show that the

city wms aware of its training progrnm's deficiencies.'' Gomez, 759 F. Supp. 2d at 1338 (cflfng Skop

v. City ofAtlanta, 485 F.3d 1 130, 1 145 (1 1th Cir. 2007)).ttlWjithout 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.'' Gold, 151 F.3d at 1350. See also Feliciano, 2012 WL 752150, *5 (tsplaintiff 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'). Here, despite the

Court's finding thatthe County unwittingly implemented an unlawful policy, Plaintiff has presented

no evidence that the County was on notice that its sheriff s deputies were being inadtquately trained

or supervised. Therefore, Defendants' motion for summary judgment on Counts Vl - VIIl of the

Amended Complaint is granted.

CONCLUSIO N

Based on the foregoing, it is hereby ORDERED AND ADJUDGED as follows:

1. Plaintiffs Motion for Partial Summary Judgment (DE 22) is GRANTED IN PART as

to Counts 1, III and V;

2. Defendants' Motion for Summary Judgment (DE 16) is GRANTED IN PART AND

DENIED IN PART. Counts VI-V11I of the Amended Complaint are hereby dismissed.

3. Plaintiffs damages and her Equal Protection Claims tmder the Fourteenth Amendment

(Counts 11 and IV) shall proceed to trial before ajury, scheduled to commence on July 9, 2012.

26


DONE and ORDERED in Chambers this 1 1* day of M ay, 2012, at W est Palm Beach in

the Southern District of Florida.

# .JAM ES M . HOPKW S

UNITED STATES MAGISTRATE JUDGE

Copies to: Al1 Counsel of Record

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pbso nurse arrest ruling

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