Case 0:16-cv-62137-WPD Document 125 Entered on FLSD Docket 01/05/2018 Page 1 of 11

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 16-62137-CIV-DIMITROULEAS/SNOW

WARREN ROLLINS, an individual,

Plaintiff,

vs.

CITY OF HOLLYWOOD, a Florida municipality,

OFFICER ALFRED STABILE, in his individual
Capacity, and OFFICER PERRY BECKFORD, in his
Individual capacity,

Defendants.
_____________________________________/

OMNIBUS ORDER

THIS CAUSE is before the Court upon Defendants Alfred Stabile and Perry Beckford’s,

Motion for Summary Judgment [DE 71], Defendant City of Hollywood’s Motion for Summary

Judgment [DE 78], Defendants Alfred Stabile and Perry Beckford’s Motion to Strike or Disregard

Plaintiff’s Affidavit [DE 103], and the Motion to Strike City of Hollywood’s Exhibit 1 Attached to

its Motion for Summary Judgment [DE 111]. The Court has carefully considered the parties’

briefs, and is otherwise fully advised in the premises.

I. Background

Plaintiff Warren Rollins (“Plaintiff” or “Rollins”) filed this action on September 8, 2016,

against Defendants Officer Alfred Stabile (“Stabile” or “Officer Stabile”) and Officer Perry

Beckford (“Beckford” or “Officer Beckford”), in their individual capacity, and against the City of

Hollywood (collectively, “Defendants”). [DE 1].

Plaintiff brought claims against Defendants under 42 U.S.C. § 1983, alleging violations of

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his Constitutional rights; Plaintiff also brought state law claims under Florida law. [DE 1 ¶¶ 5-6].

Plaintiff is an adult residing in Broward County, Florida. Stabile and Beckford were at all relevant

times police officers with the City of Hollywood, Broward County, Florida. [Id. ¶3].

On September 9, 2012, Plaintiff picked up a friend to drive him home. DSOF ¶ 1.1 Plaintiff

stopped at a grocery store. Id. ¶ 2. Officers Stabile and Beckford were dispatched to that grocery

store in reference to a domestic disturbance between an employee and his girlfriend. Id. ¶ 6.

Rollins pulled into a parking spot at the grocery store; Beckford and Stabile were standing in front

of the entrance of the store talking to the employee and his girlfriend. Id. ¶ 7. Plaintiff had his

window down, and he was playing music. Id. ¶ 8. Beckford and Stabile argue that the music was

“so loud that [they] had to yell” to complete their investigation. DSOF ¶ 9. Rollins argues that the

music was not loud, it was only turned up “midway.” PSOF ¶ 9. Defendants argue that Rollins

refused to turn down the music when first directed to do so; Rollins argues that he lowered the

music when the police came walking toward him. DSOF, PSOF ¶ 10. Defendants state that

Rollins’ loud music prevented them from conducting their investigation; Rollins avers that the

police had completed their investigation. DSOF ¶ 11, PSOF ¶ 9.

After approaching the vehicle, Stabile claims he smelled marijuana and alcohol. DSOF ¶

15. Stabile told Rollins to exit the vehicle. DSOF ¶ 17, 18. Stabile opened the door and Rollins

exited the vehicle. DSOF ¶ 20. Stabile instructed Rollins to face the vehicle and place his hands on

top of the car. Id. ¶ 20. Defendants argue that Rollins began yelling and moving his arms around in

an aggressive way; Rollins states that he was yelling so that bystanders would see Stabile’s acts

1 The Court refers to Defendants Stabile and Beckford’s Statement of Facts [DE 70] as DSOF and Plaintiff’s
Response thereto [DE 95] as PSOF. The Court also carefully considered the statements of fact filed with the City of
Hollywood’s Motion for Summary Judgment [DE 78] along with the Response thereto [DE 106]. The Statements of
Fact and responses thereto include various citations to specific portions of the record. Any citations herein to the
statements of facts and responses thereto should be construed as incorporating those citations to the record.
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toward him. DSOF ¶ 21. Stabile states that he believed that this was leading to a physical

altercation due to Rollins’ aggressive behavior. DSOF ¶ 22. Rollins argues that Stabile shoved him

violently toward the vehicle. PSOF ¶ 23.

According to Defendants, Rollins stuck his finger in Stabile’s face and did not place his

hands on the car as instructed. DSOF ¶ 24. Rollins states that Stabile was exerting force upon his

body at this point, and he was waving his hands to attract attention from bystanders and alert them

to his situation. PSOF ¶ 24. Stabile thought that Rollins was going to punch him in the face, so he

grabbed Rollins. DSOF ¶26, 28. Stabile’s right hand was already on Rollins’ back, and his left

hand grabbed the front of his shirt, below the neck; Stabile grabbed Rollins in a way to prevent him

from turning toward him. DSOF ¶¶ 29, 30. Rollins claims Stabile grabbed him by the neck. PSOF

¶ 33. During this altercation, Defendants claim that Rollins elbowed Stabile; Rollins denies this.

DSOF ¶ 31, PSOF ¶ 31. Rollins claims he was choked for 5-7 seconds when Stabile applied

pressure to his throat. DSOF ¶ 36. Rollins alleges that after forcefully slamming him to the

pavement, Stabile drilled his knee into Rollins back. PSOF ¶ 40. Once Rollins was face down,

Stabile put him in handcuffs. DSOF ¶ 41. After determining that Rollins had no active warrants

and was not under the influence, Defendants released him. DSOF ¶ 44. During this altercation,

Beckford did not say anything or do anything. Plaintiff claims he suffered back and neck injuries

and emotional damages from this incident.

Plaintiff brings state law claims against Officer Stabile for Battery (Count I), Assault

(Count II), False Imprisonment (Count III), and Intentional Infliction of Emotional Distress

(Count IV). [Id. at 1-7]. Plaintiff also brings claims against Officer Stabile under 42 U.S.C. § 1983

for violations of Plaintiff’s rights under the United States Constitution: Unlawful Imprisonment

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(Count V), and Excessive Use of Force (Count VI). Plaintiff pleads in the alternative and alleges

claims against the City of Hollywood under Florida law: Battery (Count VIII), Assault (Count IX),

and False Imprisonment (Count X).

Plaintiff’s claim against Officer Beckford is brought under 42 U.S.C. § 1983: Failure to

Intervene against Beckford (Count VII).

Officers Stabile and Beckford filed a Motion seeking summary judgment on the following

claims: Battery (Count I), Assault (Count II), False Imprisonment (Count III), Intentional

Infliction of Emotional Distress (Count IV), Unlawful Imprisonment (Count V), Excessive Force

(Count VI), and Failure to Intervene (Count VII). For the reasons stated fully below, the Motion is

granted in part. Defendant Stabile is entitled to summary judgment on the claim for Intentional

Infliction of Emotional Distress (Count IV). Defendant Beckford is entitled to summary judgment

on the claim for Failure to Intervene (Count VII). The Motion is denied as to all other claims.

Defendant City of Hollywood filed its Motion seeking summary judgment on the claims

for Battery (Count VIII), Assault (Count IX), and False Imprisonment (Count X). The arguments

raised by the City of Hollywood are largely duplicative of arguments raised by Stabile. The City of

Hollywood’s Motion for Summary Judgment is denied for the reasons articulated below.

II. Standard of Review

A district 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 moving party “always bears the initial responsibility of informing the

district court of the basis for its motion, and identifying those portions of [the record] which it

believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477

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U.S. 317, 323 (1986). “Genuine disputes of fact exist when the evidence is such that a reasonable

jury could render a verdict for the non-movant. Factual issues are considered genuine when they

have a real basis in the record.” Melton v. Abston, 841 F.3d 1207, 1219 (11th Cir. 2016) (citation

omitted).

After the movant has met its burden under Rule 56(a), the burden of production shifts, and

the non-moving party “must do more than simply show that there is some metaphysical doubt as to

the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

As Rule 56 explains: “If a party fails to properly support an assertion of fact or fails to properly

address another party’s assertion of fact . . . the court may . . . grant summary judgment if the

motion and supporting materials—including the facts considered undisputed—show that the

movant is entitled to it . . . .” Fed. R. Civ. P. 56(e)(3). Therefore, the non-moving party “may not

rest upon the mere allegations or denials in its pleadings,” but instead must present “specific facts

showing that there is a genuine issue for trial.” Walker v. Darby, 911 F.2d 1573, 1576-77 (11th Cir.

1990). In deciding a summary judgment motion, the Court must view the facts in the light most

favorable to the non-moving party and draw all reasonable inferences in that party’s favor. Davis v.

Williams, 451 F.3d 759, 763 (11th Cir. 2006).

III. Discussion

The Court finds that Defendant Stabile is entitled to summary judgment on the claim for

Intentional Infliction of Emotional Distress (Count IV). Defendant Beckford is entitled to

summary judgment on the claim for Failure to Intervene (Count VII). The Motions are denied as to

all other claims.

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A. Excessive Force Claim

Defendants argue that Rollins was “actively resisting, elbowing Stabile in the stomach and

refusing to comply with commands.” [DE 71 at 5]. This narrative sharply contrasts with Rollins

explanation of his own behavior. After reviewing the record evidence, including a video of the

altercation filed in this case [DE 62], there are material issues of fact that preclude summary

judgment on the excessive force claim. It is a question for the jury whether the force used by

Stabile violated Rollins’ constitutional rights.

Defendants argue that Stabile is entitled to qualified immunity which “shields government

officials from liability for civil damages for torts committed while performing discretionary duties

unless their conduct violates a clearly established statutory or constitutional right.” Stephens v.

DeGiovanni, 852 F.3d 1298, 1314 (11th Cir. 2017) (internal quotation marks omitted). “In

resolving questions of qualified immunity at summary judgment, courts engage in a two-pronged

inquiry.” Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014) (per curiam). First, “whether the facts,

taken in the light most favorable to the party asserting the injury, show the officer’s conduct

violated a federal right.” Id. (alternations and internal quotation marks omitted). Second, “whether

the right in question was clearly established at the time of the violation.” Id. at 1866 (internal

quotation marks omitted). Courts have discretion to decide which of the two prongs should be

addressed first. Pearson v. Callahan, 555 U.S. 225, 236 (2009).

Where, as here, there is a “claim that law-enforcement officers used excessive force to

effect a seizure,” the analysis “is governed by the Fourth Amendment’s ‘reasonableness’

standard.” Plumhoff v. Rickard, 134 S. Ct. 2012, 2020 (2014). A court’s determination of objective

reasonableness “requires a careful balancing of the nature and quality of the intrusion on the

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individual’s Fourth Amendment interests against the countervailing governmental interests at

stake.” Graham v. Conner, 490 U.S. 386, 396 (1989) (internal quotation marks omitted).

“Reasonableness in this context depends on all the circumstances relevant to an officer’s decision

to use force and the amount of force used.” Singletary v. Vargas, 804 F.3d 1174, 1181 (11th Cir.

2015). This question must be considered “from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight.” Plumhoff, 134 S. Ct. at 2020 (internal

quotation marks omitted). The reasonableness calculus therefore “allow[s] for the fact that police

officers are often forced to make split-second judgments—in circumstances that are tense,

uncertain, and rapidly evolving—about the amount of force that is necessary in a particular

situation.” Graham, 490 U.S. at 397.

Applying these well-settled principles, the Court cannot determine whether Stabile

violated Rollins’ Fourth Amendment rights. Further, the Court finds the cases cited by Defendants

are distinguishable from the facts taken in the light most favorable to Rollins.2 The Court is not

aware of any cases stating that the force used by Stabile was reasonable. It is a question of fact for

the jury to determine whether Stabile used excessive force. Stabile and the City of Hollywood are

not entitled to summary judgment on this claim.3

B. False Imprisonment/ Unlawful Imprisonment Claims

The gravamen of the tort of false imprisonment is the unlawful restraint of a person against

that person's will. Johnson v. Weiner, 155 Fla. 169, 19 So.2d 699, 700 (1944). In a false arrest

action, probable cause is an affirmative defense to be proven by the defendant. Bolanos v. Metro.

Dade County, 677 So.2d 1005, 1005 (Fla. 3d DCA 1996). Material issues of fact preclude

2 Where applicable, the Court considers the facts as gleaned from the video.
3 The Court does not address the issue of municipal liability under Monell v. Dep't of Soc. Servs. of City of N.Y.,. 436
U.S. 658, 690–91 (1978) because Defendants did not raise the issue.
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summary judgment on the claims for false imprisonment/unlawful imprisonment. There are

material issues of fact about the events leading up to Plaintiff’s arrest that prevent the Court from

determining whether Stabile had probable cause, arguable probable cause,, or even a well-founded

suspicion, to detain the Plaintiff. This is a question for the jury. Therefore, Defendants Stabile and

City of Hollywood are not entitled to summary judgment on these claims.

C. Assault and Battery Claims

“An assault is an intentional, unlawful offer of corporal injury to another by force, or

exertion of force directed toward another under such circumstances as to create a reasonable fear

of imminent peril.” Sullivan v. Atl. Fed. Sav. & Loan Ass'n., 454 So. 2d 52, 54 (Fla. Dist. Ct. App.

1984). A “battery consists of the intentional infliction of a harmful or offensive contact upon the

person of another[.]” Id.

Police “officers are entitled to a presumption of good faith in regard to the use of force

applied during a lawful arrest, and officers are only liable for damage where the force used is

‘clearly excessive.’” Davis v. Williams, 451 F.3d 759, 768 (11th Cir.2006) (quoting City of Miami

v. Sanders, 672 So.2d 46, 47 (Fla. 3d DCA 1996)). “If an officer uses excessive force, the

‘ordinarily protected use of force is transformed into a battery.’” Id. (quoting Sanders, 672 So.2d at

47) (ellipses omitted). Courts, however, should not “use hindsight to judge the acts of police

officers; we look at what they knew (or reasonably should have known) at the time of the act.”

Rodriguez v. Farrell, 280 F.3d 1341, 1352–53 (11th Cir.2002). “[T]he right to make an arrest or

investigatory stop necessarily carries with it the right to use some degree of physical coercion or

threat thereof to effect it.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443

(1989). It is well established that “the typical arrest involves some force and injury.” Rodriguez,

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280 F.3d at 1352 (citing Nolin v. Isbell, 207 F.3d 1253, 1257–58 (11th Cir.2000)).

Here, it is a question for the jury whether the arrest was lawful and whether the force used

was reasonable. Therefore, Defendants Stabile and City of Hollywood are not entitled to summary

judgment on these claims.

E. Intentional Infliction of Emotional Distress

The elements of the tort of intentional infliction of emotional distress are: “(1) The

wrongdoer's conduct was intentional or reckless, that is, he intended his behavior when he knew or

should have known that emotional distress would likely result; (2) the conduct was outrageous,

that is, as to go beyond all bounds of decency, and to be regarded as odious and utterly intolerable

in a civilized community; (3) the conduct caused emotion distress; and (4) the emotional distress

was severe.” LeGrande v. Emmanuel, 889 So. 2d 991, 994 (Fla. Dist. Ct. App. 2004). The Court

need not address all elements of this claim. Plaintiff has failed to establish that his emotional

distress was severe. Therefore, Defendant Stabile is entitled to summary judgment on this claim.

F. Failure to Intervene

A police officer has a duty to take reasonable steps to protect a victim from another

officer's use of excessive force, and if “a police officer . . . fails or refuses to intervene when a

constitutional violation . . . takes place in his presence, the officer is directly liable under Section

1983.” Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir.1986); see also Skrtich v. Thornton, 280 F.3d

1295, 1302 (11th Cir.2002)(internal citations omitted) (An “officer who is present at the scene and

who fails to take reasonable steps to protect the victim of another officer's use of excessive force,

can be held liable for his nonfeasance.”). However, an officer is only liable if there is a realistic and

reasonable opportunity to intervene. See Clark, 783 F.2d at 1007 (instructing the district court

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upon remand to determine whether the officer was in a position to intervene); see also Putman v.

Gerloff, 639 F.2d 415, 423–24 (8th Cir.1981) (liability exists only if the non-intervening officer

saw the beating or had time to reach the offending officer).

Here, the video shows that the use of force at issue lasted no more than eight seconds, and

Beckford was not present during that whole time. No reasonable juror could find that Beckford’s

inaction was unjustified given that short time-frame. Therefore, Beckford is entitled to summary

judgment on the claim for failure to intervene.

III. Conclusion

For the foregoing reasons, it is ORDERED AND ADJUDGED as follows:

1. Stabile and Beckford’s Motion for Summary Judgment [DE 71] is hereby

GRANTED IN PART as set forth above. Defendant Stabile is entitled to summary

judgment on the claim for Intentional Infliction of Emotional Distress (Count IV).

Defendant Beckford is entitled to summary judgment on the claim for Failure to

Intervene (Count VII). The Motion is denied as to all other claims.

2. The City of Hollywood’s Motion for Summary Judgment [DE 78] is DENIED.

3. Defendants, Alfred Stabile and Perry Beckford’s Motion to Strike or Disregard

Plaintiff’s Affidavit [DE 103] and the Motion to Strike City of Hollywood’s

Exhibit 1 Attached to its Motion for Summary Judgment [DE 111] are DENIED

AS MOOT. These Motions concern Plaintiff’s Affidavit [DE 92-1] and Exhibit 1

to the City of Hollywood’s Motion for Summary Judgment [DE 78-1].

Consideration of these documents does not alter the Court’s analysis.

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DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this

5th day of January, 2018.

Copies Furnished to:

Counsel of Record

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