Loving v. Miami-Dade County, Florida
1:19-cv-21351
S.D. Fla.Jun 30, 2025Check TreatmentDocket
Case 1:19-cv-21351-JEM Document 112 Entered on FLSD Docket 06/30/2025 Page 1 of 10
UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO.: 19-ev-21351-MARTINEZ
DYMA LOVING,
Plaintiff,
V.
MIAMI-DADE COUNTY, et al.,
Defendant.
/
ORDER GRANTING DEFENDANT MIAMI-DADE COUNTY’S MOTION TO DISMISS
THIS CAUSE came before the Court upon Defendant Miami Dade County’s Motion to
Dismiss Plaintiff's Amended Complaint (“Motion”). (ECF No. 59), Upon careful consideration
of the Motion, Plaintiffs Response in Opposition to the Motion, (ECF No. 65), Defendant’s Reply,
(ECF No. 68), and being otherwise fully advised in the premises, the Motion is GRANTED.
I. BACKGROUND
This case arises from Plaintiffs alleged wrongful arrest by Miami-Dade Police Officers
Alejandro Giraldo and Juan Calderon (the “Officers”) (ECF No. 51 at §§ 23, 32). Plaintiff's friend
called the police after a neighbor threatened them with a shotgun. (/d. at ¥ 14). The Officers arrived
and began “aggressively” and “flippantly” questioning Plaintiff. (/d. at {{ 18, 20). Within minutes,
the Officers arrested Plaintiff for disorderly conduct and resisting an officer without violence
(“ROWV”). Ud. at {J 23, 32). Plaintiff alleges that during her encounter with the Officers, she was
“physically attacked and violently manhandled”, (/d. at §{ 34, 50), even though she “did not
threaten the officers present...in any way” and “did not take any action that could be perceived as
threatening.” (/d. at {{] 29-30). Despite this, Plaintiff alleges that the Officers “intentionally caused
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bodily harm to [Plaintiff] by using excessive force upon her person, grabbing her against her will
without lawful cause, slamming [Plaintiff] into the ground and holding her down to the ground
against her will.” Ud. at ¢ 114).
Plaintiff further alleges that one of the Officers fabricated evidence to justify the arrest and
swore to materially misleading and false allegations. (Ud. at 33). One of the Officers, Officer
Giraldo, “already had a history of violating Miami-Dade County Police Department’s stated
procedures, of preparing inaccurate and incomplete reports, of misrepresenting or falsifying
reports, and of detaining individuals without probable cause” and Defendant, “despite being aware
of Giraldo’s history...failed to take sufficient steps to correct Giraldo’s behavior.” (/d. at J] 48-
49).
Based on the above, Plaintiff alleges that Defendant has institutionalized “unconstitutional
policies, customs and practices”, including: “maintain[ing] an unwritten practice whereby
supervising officers charged with reviewing the accuracy and sufficiency of arrest affidavits fail
to take corrective action against officers who have falsified or misrepresented facts in their arrest
affidavits; “foster[ing] an unwritten policy whereby its officers arrest individuals despite the
knowledge that those individuals have not committed acts that legally constitute RWOV or
Disorderly Conduct; and “failure to properly train its officers” which “results in individuals being
arrested without just cause and in violation of their constitutional rights.” (Ud. at {{[ 60-63, 65).
Plaintiff asserts six claims against the Defendant, including: false arrest and false
imprisonment (Count I), negligent hiring or retention (Count III), negligent failure to train and
supervise (Count IV), deprivation of civil rights by excessive use of force (Count VJ), battery
(Count VIII), and gross negligence (Count IX). (Ud. at J] 66-122). Plaintiff alleges that the illegal
arrest and excessive force she was subjected to constitutes an “institutionalized practice of the
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Miami-Dade County Police Department, which was known to and ratified by Defendant Miami-
Dade County.” Ud. at | 33). Defendant moves to dismiss arguing that Plaintiffs state law claims
are barred by sovereign immunity and Plaintiff’s 42 U.S.C. § 1983 claims fail to state a claim for
municipal liability.
IL. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), the Court will grant a motion to dismiss
if the complaint fails to state a claim for which relief can be granted. To survive dismissal, the
complaint must provide “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). At this stage of the case, “the question is whether the
complaint ‘contains sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.’” Worthy v. Phenix City, 930 F.3d 1206, 1217 (11th Cir. 2019) (alteration
adopted) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In ruling on a motion to dismiss,
the Court “accepts the factual allegations in the complaint as true and construes them in the light
most favorable to plaintiff.” Speaker v. U.S. HHS CDC & Prevention, 623 F.3d 1371, 1379 (11th
Cir. 2010). To survive a motion to dismiss, “factual allegations must be enough to raise a right to
relief above the speculative level” and must be sufficient “to state a claim for relief that is plausible
on its face.” Bell Atl. Corp v. Twombly, 550 U.S. 544, 555, 570 (2007). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct.
1937, 1949 (2009). Dismissal is only appropriate “when the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief.” Horsley v. Feldt, 304 F.3d 1125, 1131
(11th Cir. 2002).
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Il. DISCUSSION
Defendant moves to dismiss Counts I, VIII, and IX of the Amended Complaint on two
grounds: failure to comply with the notice requirement of Florida Statute § 768.28(6)(a) and
sovereign immunity. (ECF No. 59). While failure to comply with the notice requirement is a
“temporary procedural bar to a lawsuit against the State or one of its subdivisions”, Widmer v.
Caldwell, 714 So.2d 1128, 1129 (Fla. 1st DCA 1998), that often results in the dismissal of a lawsuit
without prejudice, VonDrasek v. City of St. Petersburg, 777 So. 2d 989, 991 (Fla. 2nd DCA 2000),
the Court finds grounds for dismissal with prejudice based on sovereign immunity. Defendant also
moves to dismiss Counts III, [V and VI for failure to state a claim, which the Court addresses
below.
A. Sovereign Immunity
“The doctrine of sovereign immunity provides that Defendant, as a political subdivision of
the State of Florida, is immune from suit except in those circumstances where the State has given
its consent to be sued.” Moore y. Miami-Dade Cnty., 502 F. Supp. 2d 1224, 1234-35 (S.D. Fla.
2007) (citing Cauley v. City of Jacksonville, 403 So. 2d 379, 381 (Fla. 1981). Florida Statute §
768.28(9)(a) waives sovereign immunity of state agencies for torts in specified circumstances,
including: the state officer, employee, or agent “acted in bad faith or with malicious purpose or in
a manner exhibiting wanton and willful disregard of human rights, safety, or property.” Fla. Stat.
§ 768.28(9)(a). See also id. at § 768.28(2) (“state agencies and subdivisions” include “counties
and municipalities”).
“The question of whether an act was committed with malicious purpose, bad faith, or with
wanton and willful disregard is not a question that must be submitted to a jury, but rather, can be
decided by the Court depending on the facts.” Blue v. Miami-Dade Cnty., No. 10-23599-CIV, 2011
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WL 2447699, at *2 (S.D. Fla. June 15, 2011) (citing Prieto v. Malgor, 361 F.3d 1313, 1320 (11th
Cir.2004)). Dismissal is proper where the plaintiff’s allegations “can only equate with the kind of
intentional, malicious misconduct by a state employee that does not give rise to municipal liability
under Florida’s waiver of sovereign immunity statute.” Terry v. Rodriguez, No. 09-23726, 2010
WL 2342382, at *2 (S.D. Fla. June 7, 2010). Cf Khoury v. Miami-Dade Cnty., No. 20-21841-CIV-
JEM, 2020 WL 6290154 (S.D. Fla. Oct. 27, 2020) (“when faced with two plausible and competing
inferences, the Court is required to construe the allegations in a pleading in the light most favorable
to the nonmoving party at the dismissal stage.”).
Defendant moves to dismiss Plaintiff’s claims for false arrest and false imprisonment
(Count I), battery (Count VIII), and gross negligence (Count IX), because “accepting the
allegations in the Amended Complaint as true, the Officers’ actions can only be characterized as
having been committed in bad faith or with malicious purpose”. (ECF No. 59 at 6). The Court
agrees. Plaintiff alleges that during her encounter with the Officers, whom she called for help, she
was “physically attacked and violently manhandled”, (ECF No. 51 at {§ 34, 50), even though she
“did not threaten the officers present...in any way” and “did not take any action that could be
perceived as threatening.” (/d. at [¥ 29-30). Plaintiff states that the Officers “arrested [Plaintiff]
without probable cause as a matter of fact” and “as a matter of law”. (Id. at F§ 52-53). Plaintiff
alleges that one of the Officers fabricated evidence to justify the arrest and swore to materially
misleading and false allegations. Ud. at § 33). Plaintiff further alleges that the Officers
“intentionally caused bodily harm to [Plaintiff] by using excessive force upon her person, grabbing
her against her will without lawful cause, slamming [Plaintiff] into the ground and holding her
down to the ground against her will.” Ud. at § 114).
These allegations—that the Officers used excessive force on a nonthreatening person,
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arrested her without probable cause, and fabricated evidence to falsify the arrest affidavit—support
Defendant’s claim of sovereign immunity because when accepted as true, cannot be characterized
as anything but acts committed in “bad faith or with malicious purpose or in a manner exhibiting
wanton and willful disregard of human rights, safety, or property.” Florida Statute § 768.28(9)(a).
See Gregory v. Miami-Dade Cnty., Fla., 719 F. App’x 859, 873-74 (11th Cir. 2017) (“Accepting
as true the facts alleged in the complaint .. . no version of the facts pled in this particular case
support a claim that [the officer] acted without wanton and willful disregard of [the plaintiff s]
rights. Sovereign immunity therefore attaches to the claims against Miami-Dade [County].”). See
also Terry, 2010 WL 2342382 at *2; Moore, 502 F. Supp. 2d at 1235; Dukes v. Miami-Dade Cnty.,
No. 05-22665-CIV, 2006 WL 8433284 at *2 (S.D. Fla. July 10, 2006), Counts I, VIII, and LX must
be dismissed with prejudice.
B. 42 U.S.C. § 1983
Plaintiff has failed to state a claim against Defendant with respect to those claims falling
under 42 U.S.C. § 1983, including: negligent hiring or retention (Count III), negligent failure to
train and supervise (Count IV), and deprivation of civil rights by excessive use of force (Count
VD.
“Under Section 1983, local governments can be sued for monetary, declaratory, or
injunctive relief for alleged unconstitutional action pursuant to an officially adopted policy,
ordinance, regulation, or decision; or a governmental custom which “has not received formal
approval through ... official decision making [sic] channels.” Monell v. Dep’t of Soc. Servs. of City
of New York, 436 U.S. 658, 690-91 (1978). However, “[t]here can be no policy-based liability or
supervisory liability when there is no underlying constitutional violation.” Cantrell v. McClure,
805 F. App’x 817, 822 (11th Cir. 2020) (citing Knight through Kerr vy. Miami-Dade Cnty., 856
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F.3d 795, 821 (11th Cir. 2017)). Therefore, for § 1983 liability to attach to a municipality, “a
plaintiff must show: (1) that his constitutional rights were violated; (2) that the municipality had a
custom or policy that constituted deliberate indifference to that constitutional right; and (3) that
the policy or custom caused the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir.
2004) (citing City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412
(1989)).
“Tn order to establish section 1983 liability against a county based on an unofficial custom
or practice, ‘a plaintiff must establish a widespread practice that, although not authorized by
written law or express municipal policy, is so permanent and well settled as to constitute a custom
or usage with the force of law.’” Moore v. Miami-Dade Cnty., 502 F. Supp. 2d 1224, 1231 (S.D.
Fla. 2007) (citing Brown vy. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir.1991)). The
plaintiff can either identify an official municipal policy that permits a constitutional violation, or
an unofficial custom or practice—demonstrated by repeated acts of a final policymaker—that
caused the plaintiff's constitutional violation. See id. at 1232. Further, a municipality cannot be
held liable under a respondeat superior theory. Diaz v. Miami-Dade Cnty., 424 F. Supp. 3d 1345,
1361-62 (S.D. Fla. 2019), aff'd, 849 F. App’x 787 (11th Cir. 2021) (citing Monell, 436 U.S. at
692). Rather, “only those officials who have final policymaking authority may render the
municipality liable under Section 1983.” Brown v. Neumann, 188 F.3d 1289, 1290 (11th Cir. 1999)
(quoting Hill v. Clifton, 74 F.3d 1150, 1152 (11th Cir.1996) (emphasis in original)).
Here, Plaintiff alleges, “on information and belief’, that Defendant has “unconstitutional
policies, customs and practices,” that violated her constitutional rights and caused her injuries,
including: “maintain[ing] an unwritten practice whereby supervising officers charged with
reviewing the accuracy and sufficiency of arrest affidavits fail to take corrective action against
Case 1:19-cv-21351-JEM Document 112 Entered on FLSD Docket 06/30/2025 Page 8 of 10
officers who have falsified or misrepresented facts in their arrest affidavits; “foster[ing] an
unwritten policy whereby its officers arrest individuals despite the knowledge that those
individuals have not committed acts that legally constitute RWOV or Disorderly Conduct; and
“failure to properly train its officers” which “results in individuals being arrested without just cause
and in violation of their constitutional rights.” (ECF No. 51 at J§ 60-63, 65). Plaintiff further
alleges that these “institutionalized practice[s] of the Miami-Dade County Police Department,”
were “known to and ratified by Defendant Miami-Dade County.” (/d. at § 63). As to the Officers
who arrested Plaintiff, she asserts that “Giraldo already had a history of violating Miami-Dade
County Police Department’s stated procedures, of preparing inaccurate and incomplete reports, of
misrepresenting or falsifying reports, and of detaining individuals without probable cause” and
Defendant, “despite being aware of Giraldo’s history...failed to take sufficient steps to correct
Giraldo’s behavior.” (/d. at J] 48-49).
These allegations are insufficient to support Plaintiff's claims. Plaintiff has failed to
identify an official or unofficial policy that caused her alleged constitutional violations. See Diaz
v. Miami-Dade Cnty., 424 F. Supp. 3d 1345 (S.D. Fla. 2019), aff'd, 849 F. App’x 787 (11th Cir.
2021) (“Plaintiff's complaint is based on his sole incident of arrest, not on a demonstrated practice
that results in deprivation of constitutional rights.”); Cluffv. Miami-Dade Cnty., No. 21-23342-
CIV, 2022 WL 700971, at *3 (S.D. Fla. Feb. 1, 2022), aff'd, No. 22-10704, 2022 WL 16757095
(11th Cir. Nov. 8, 2022) (“Plaintiffs cannot manufacture a County or Miami-Dade Fire custom
based on broad-sweeping conclusory statements without citation to any supporting documents or
other specific examples indicative of such a custom.”). Nor has plaintiff identified any repeated
acts of a final policymaker to demonstrate an unofficial custom that caused her constitutional
violation. See Craig v. Floyd Cnty., Ga., 643 F.3d 1306, 1311 (11th Cir. 2011) (“Proof of a single
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incident of unconstitutional activity is not sufficient to impose liability” against a
municipality...because a custom must be such ‘a longstanding and widespread practice [that it] is
deemed authorized by the policymaking officials because they must have known about it but failed
to stop it’”) (citations omitted).
Plaintiff presents no evidence outside of her own arrest to support her allegations of an
unconstitutional policy, custom, or practice, thus, Counts ITI and IV must be dismissed for failure
to state a claim under the second prong of Monell. See Sosa v. Martin Cnty., Fla., 13 F.4th 1254
(11th Cir. 2021), reh’g en banc granted, opinion vacated, 21 F 4th 1362 (11th Cir. 2022), and on
reh’g en banc, 57 F.4th 1297 (11th Cir. 2023) (“[the plaintiff] points to no data other than his own
rearrest...to support his information-and-belief allegation. For that reason, [the plaintiff] did not
plead enough facts to set forth a Monell practice claim, and the district court did not err in
dismissing that claim.”) (citations omitted),
C. Dismissal With Prejudice
Defendant requests that the Court dismiss Plaintiffs claims against Defendant with
prejudice. See (ECF No. 59 at 18). A court may dismiss claims with prejudice when another
attempt to amend the complaint would be futile. See Hall v. United Ins. Co. of Am., 367 F.3d 1255,
1263 (11th Cir. 2004), Upon review of the relevant pleadings, it is apparent that any attempt to
amend the pleadings would be futile. The Court further notes that Plaintiff previously had an
opportunity to amend her Initial Complaint by filing the Amended Complaint after Defendant filed
its First Motion to Dismiss raising similar arguments as those in the pending Motion to Dismiss.
See (ECF No. 45). As such, Plaintiff's claims against Defendant should be dismissed with
prejudice and without leave to amend.
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IV. CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED as follows:
1. Defendant’s Motion, (ECF No. 59), is GRANTED.
2. Counts I, II, IV, VI, VII, and IX of Plaintiff's Amended Complaint, (ECF No.
51), are DISMISSED WITH PREJUDICE.
3. Plaintiff's claims shall proceed against Defendants Alejandro Giraldo and Juan
Calderon.
DONE AND ORDERED in Chambers at Miami, Florida, this 27 day of June 2025.
Ga Wel
JOSE E. M ARTINEZ
UNITED TATES DISTRICT JUDGE
Copies provided to:
All Counsel of Record
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