Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT BOB GUALTIERI, in his official capacity as Sheriff of Pinellas County, Florida; and CHRISTOPHER G. LYONS, individually and in his official capacity as a deputy of the Pinellas County Sheriff's Office, Appellants, v. RANDALL BOGLE, Appellee. No. 2D21-2900 August 5, 2022 Appeal pursuant to Fla. R. App. P. 9.130 from the Circuit Court for Pinellas County; Amy Williams, Judge. Jason G. Gordillo of Pinellas County Sheriff's Office, Largo, for Appellants. Daniel Hartpence of Clark Law, St. Petersburg, for Appellee. STARGEL, Judge. Bob Gualtieri, in his official capacity as Sheriff of Pinellas County, Florida, and Christopher G. Lyons, individually and in his official capacity as a deputy of the Pinellas County Sheriff's Office (Appellants), appeal from a nonfinal order denying their motion to dismiss a negligence action brought by Randall Bogle. We have jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(F)(ii), which addresses orders denying entitlement to immunity under section 768.28(9), Florida Statutes (2016), and rule 9.130(a)(3)(F)(iii), which addresses orders denying entitlement to sovereign immunity.1 Because we agree with Appellants that dismissal was warranted as to two of the three counts alleged in the operative complaint, we reverse in part. On the evening of October 14, 2016, Deputy Lyons was on duty in his patrol vehicle when he allegedly observed Bogle speeding on his motorcycle. Deputy Lyons followed him into an intersection where Bogle claims he was standing with his motorcycle. According 1 Rule 9.130 was recently amended "to expand the availability of appellate review of nonfinal orders denying sovereign immunity, denying immunity in civil rights claims arising under federal law, and denying immunity under section 768.28(9), Florida Statutes." In re Amends. to Fla. Rule of App. Proc. 9.130, 289 So. 3d 866, 866- 67 (Fla. 2020). As amended, the rule allows "appeals of nonfinal orders that deny a motion that asserts entitlement to the types of immunity addressed in those subdivisions, removing the requirement that the orders 'determine that, as matter of law, a party is not entitled' to the immunity asserted." Id. 2 to Bogle, Deputy Lyons approached without warning, grabbed his left arm, and attempted to pull him from the motorcycle. This action allegedly caused the motorcycle to fall on top of Bogle and resulted in a slice and burn to his right leg. However, Deputy Lyons included in the arrest report that he ordered Bogle to get off the motorcycle and Bogle responded by tensing and bracing his arms instead of immediately getting off the motorcycle. Deputy Lyons arrested Bogle for two misdemeanor traffic offenses: reckless driving and driving without a valid driver's license. Based on these events, Bogle filed an action for damages against Deputy Lyons and the Sheriff. Following Deputy Lyons' answer and affirmative defenses and the Sheriff's motion to dismiss, Bogle successfully moved to amend his initial complaint. Bogle's second amended complaint asserts three causes of action: battery against Deputy Lyons (count one); battery against the Sheriff based on the actions of Deputy Lyons (count two); and negligent training against the Sheriff (count three). Appellants moved to dismiss Bogle's second amended complaint, raising the issue of sovereign immunity as to each count and requesting dismissal with prejudice. Bogle filed a memorandum of law in opposition to the motion to 3 dismiss. A case management conference was held on August 18, 2021, during which the trial court denied Appellants' motion to dismiss. The court then rendered an unelaborated order denying the motion to dismiss, and this appeal ensued. I. Standard of Review The question of whether a party is entitled to sovereign immunity is subject to de novo review. Lee Mem'l Health Sys. v. Hilderbrand, 304 So. 3d 58, 60 (Fla. 2d DCA 2020). "However, when ruling on a motion to dismiss based on sovereign immunity, courts are required to treat as true the complaint's allegations, 'including those that incorporate attachments, and to look no further than the amended complaint and its attachments.' " Univ. of S. Fla. Bd. of Trs. v. Moore, No. 2D21-2685, 2022 WL 1751166, at *1 (Fla. 2d DCA June 1, 2022); see also Baycon Indus., Inc. v. Shea, 714 So. 2d 1094, 1095 (Fla. 2d DCA 1998) ("A motion to dismiss is not a substitute for a motion for summary judgment, and in ruling on a motion to dismiss a complaint the trial court is confined to consideration of the allegations found within the four corners of the complaint."). 4 II. Count One for Battery Against Deputy Lyons Count one raises a state-law battery claim against Deputy Lyons in both his individual capacity and in his official capacity. To the extent count one seeks to hold Deputy Lyons liable in his official capacity, "[a] suit against a defendant in his official capacity is, in actuality, a suit against the governmental entity which employs him." Stephens v. Geoghegan, 702 So. 2d 517, 527 (Fla. 2d DCA 1997). This being the case, "there no longer exists a need to bring official-capacity actions against local government officials, because local government units can be sued directly." De Armas v. Ross, 680 So. 2d 1130, 1131-32 (Fla. 3d DCA 1996) (quoting Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991)). Thus, this portion of count one is redundant to Bogle's battery claim against the Sheriff in count two, discussed infra. Turning to the individual-capacity aspect of count one, Deputy Lyons' claim for immunity derives from section 768.28(9)(a), which provides: No officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment 5 or function, unless such 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. . . . The exclusive remedy for injury or damage suffered as a result of an act, event, or omission of an officer, employee, or agent of the state or any of its subdivisions or constitutional officers shall be by action against the governmental entity, or the head of such entity in her or his official capacity, or the constitutional officer of which the officer, employee, or agent is an employee, unless such act or omission was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. The state or its subdivisions shall not be liable in tort for the acts or omissions of an officer, employee, or agent committed while acting outside the course and scope of her or his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. "[T]he immunity provided by section 768.28(9)(a) is both an immunity from liability and an immunity from suit, and the benefit of this immunity is effectively lost if the person entitled to assert it is required to go to trial." Willingham v. City of Orlando, 929 So. 2d 43, 48 (Fla. 5th DCA 2006) (holding that police officer was entitled to summary judgment against personal liability where he did not act in bad faith, with malicious purpose, or with willful and wanton disregard for human rights, safety, or property). As such, "the trial 6 judge must act as a gatekeeper in these circumstances[] and should terminate civil proceedings when the immunity applies." Id. Here, the individual-capacity claim against Deputy Lyons does not allege that he acted with bad faith, malicious purpose, or willful and wanton disregard toward Bogle at the time of the alleged battery. The cause of action against Deputy Lyons is specifically titled "Count I—State Law Battery (Without Bad Faith or Willful, and Wanton Disregard)" (emphasis added). Further, none of the factual allegations within count one or anywhere else in the second amended compliant suggest that Deputy Lyons acted with the requisite bad faith, malicious purpose, or willful and wanton disregard so as to exclude him from immunity from personal liability under the statute. Accordingly, because the four corners of the second amended complaint reflect that the battery claim set forth in count one is not viable against Deputy Lyons either in his individual capacity or in his official capacity, it must be dismissed with prejudice.2 2 Although it appears from the record that the second amended complaint was only Bogle's second round of pleading (the record contains a proposed first amended complaint that was attached to Bogle's first motion to amend, but it does not appear 7 III. Count Two for Battery in the Course and Scope of Employment Against the Sheriff Appellants next argue that count two—which raises a similar claim for battery against the Sheriff based on Deputy Lyons' conduct in the course and scope of his employment—is subject to dismissal based on the immunity provision contained in the last sentence of section 768.28(9)(a): The state or its subdivisions shall not be liable in tort for the acts or omissions of an officer, employee, or agent committed while acting outside the course and scope of her or his employment or committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. Under this provision, for governmental liability to attach, the intentional conduct of an employee must have been within the course and scope of employment and "not committed in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of the plaintiff's rights." City of Boynton Beach v. Weiss, 120 So. 3d 606, 611 (Fla. 4th DCA 2013) (citing City of that it was ever docketed in the trial court), we find dismissal with prejudice appropriate under the circumstances. See Elliott v. City of Hollywood, 399 So. 2d 507, 509-10 (Fla. 4th DCA 1981) (affirming dismissal with prejudice of first amended complaint on sovereign immunity grounds). 8 Miami v. Simpson, 172 So. 2d 435 (Fla. 1965)); see also Richardson v. City of Pompano Beach, 511 So. 2d 1121, 1123 (Fla. 4th DCA 1987) ("[A] governmental entity is liable for all torts, negligent ones and intentional ones alike, unless they are committed outside the course and scope of one's employment or unless the actor was acting in bad faith or with a malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property."). While the second amended complaint does not contain any express allegations of bad faith, malice, or willful and wanton conduct, Appellants nevertheless maintain that section 768.28(9)(a) entitles the Sheriff to immunity from the conduct of his deputy as alleged in count two.3 According to Appellants, although Bogle 3 While Appellants' argument on this point focuses on existence of bad faith, malicious purpose, or willful and wanton conduct, we note that a finding that an employee acted beyond the course and scope of their employment is also sufficient to revoke the waiver of immunity. See McGhee v. Volusia County, 679 So. 2d 729, 734 (Fla 1996) (Wells, J., specially concurring) ("[T]he plain language of the statute reveals that a governmental entity is liable for the actions of its employee unless the employee is either not acting within the scope of employment or is acting in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property. These two bases should remain distinct, as a finding of either one will revoke 9 "creatively avoided using the words 'malice, bad faith, willful[,] or wanton,' in an effort to avoid dismissal," similar behavior by law enforcement officers has led courts in other cases to find that the alleged force was used with malicious intent. See Quinette v. Reed, 805 F. App'x 696, 707 (11th Cir. 2020) (holding that corrections officer who entered cell and shoved nonresistant detainee to ground without justification manifested "a deliberate intention to do wrong" and denying immunity under Georgia law); McCroden v. Bressett, 668 F. App'x 867, 868 (11th Cir. 2016) (finding that factual issue existed as to whether arm-bar takedown of compliant subject was committed in bad faith, with malicious purpose, or in a willful and wanton manner); Gaviria v. Guerra, No. 17-23490-CIV, 2018 WL 1876124, at *11 (S.D. Fla. Apr. 19, 2018) (explaining that allegations that officer, without provocation, repeatedly tased and struck subject with a closed fist could "only equate with the kind of the waiver of sovereign immunity." (citation omitted)). Here, however, based on the allegations in the second amended complaint, there is no question that Deputy Lyons was acting within the course and scope of his employment when he detained Bogle. See generally Goss v. Human Servs. Assocs., 79 So. 3d 127, 132 (Fla. 5th DCA 2012) (discussing analysis for determining whether an employee's conduct is within the course and scope of employment). 10 intentional, malicious misconduct by a state employee that does not give rise to municipal liability under Florida's waiver of sovereign immunity statute"); Asprilla v. Trinidad, No. 6:09–cv–101–Orl– 28KRS, 2009 WL 2151156, at *4 (M.D. Fla. July 14, 2009) (finding city immune from battery claim where officer was alleged to have intentionally pushed plaintiff down a flight of stairs). Several Florida courts, however, have in comparable situations permitted the question of bad faith, malice, or willful and wanton conduct to be sent to the jury. See, e.g., McGhee v. Volusia County, 679 So. 2d 729, 730 (Fla. 1996) (concluding that deputy who lunged at a handcuffed suspect, grabbed him by the throat, and kicked him acted within the scope of his employment and stating, "the question must be put to the fact-finder whether Deputy Hernlen acted in bad faith, with malicious purpose, or in a manner exhibiting wanton or [willful] disregard of human rights, safety, or property"); Carestio v. Sch. Bd. of Broward Cnty., 866 So. 2d 754, 756 (Fla. 4th DCA 2004) (holding that school employees who kicked and punched student while escorting him from class were within scope of employment and directing factfinder to determine whether they acted in wanton or willful manner); see also Weiss, 120 So. 3d 11 at 608-09, 611 (rejecting city's immunity claim where jury found that officer who pushed detainee into metal chair and tased him multiple times did not act in bad faith, with malicious purpose, or in wanton or willful manner). Here, taking the allegations in Bogle's second amended complaint as true, we cannot agree with Appellants' position that Deputy Lyons' conduct was of the type that could only occur from bad faith, malicious intent, or willful and wanton disregard. Deputy Lyons was acting within the scope of his employment when he attempted to remove Bogle from his motorcycle after ordering him to get off the motorcycle during the traffic stop. While it may be debatable whether that level of force was justified, there is no indication that Deputy Lyons intended for the motorcycle to fall on to Bogle or to otherwise injure him. At a minimum, these allegations present a factual question as to whether Deputy Lyons acted in bad faith, with malicious purpose, or in a willful and wanton manner that should be decided as the case moves forward. See Richardson, 511 So. 2d at 1124 (reversing dismissal of excessive force and false arrest claims where "there are no allegations of bad faith, malicious purpose, or wanton and willful 12 disregard of human rights, safety[,] or property" and "the intentional torts involved . . . do not inherently or necessarily involve those elements which would activate immunity"). For this reason, we conclude that the trial court correctly denied the motion to dismiss as to count two. IV. Count Three for Negligent Training Against the Sheriff Finally, we consider count three, which is a claim for negligent training against the Sheriff. In this count, Bogle alleges that the Sheriff "failed to adequately prepare [Deputy Lyons] on how to safely encounter and interact with individuals during a traffic stop, as well as failing to properly prepare [Deputy Lyons] on the proper use and escalation of force." As with the previous claims, Appellants seek dismissal of this claim based on sovereign-immunity principles. "The State of Florida has waived sovereign immunity in tort actions for any act for which a private person under similar circumstances would be held liable." Henderson v. Bowden, 737 So. 2d 532, 534-35 (Fla. 1999). Therefore, in negligence actions against the state or its agencies or subdivisions, "there can be no governmental liability unless a common law or statutory duty of 13 care existed that would have been applicable to an individual under similar circumstances." Id. at 535. The supreme court has emphasized the distinction between the existence of a legal duty and the issue of whether sovereign immunity applies: "When addressing the issue of governmental liability under Florida law, we have repeatedly recognized that a duty analysis is conceptually distinct from any later inquiry regarding whether the governmental entity remains sovereignly immune from suit notwithstanding the legislative waiver present in section 768.28, Florida Statutes." Wallace v. Dean, 3 So. 3d 1035, 1044 (Fla. 2009) (footnote omitted). In a nutshell, count three alleges that the Sheriff breached a duty to properly train his deputies, including Deputy Lyons, to prevent them from using excessive force during traffic stops, which led to Bogle being injured. Drawing all reasonable inferences in favor of Bogle, the second amended complaint plausibly alleges the existence of a duty of care that would have been applicable to a private citizen under similar circumstances.4 See Lewis v. City of St. Petersburg, 260 F.3d 1260, 1265 (11th Cir. 2001) ("Lewis's claim 4 We express no opinion regarding the sufficiency of Bogle's allegations as to any other element of his negligent training claim. 14 that the City's negligent training of its employees caused TyRon Lewis to suffer damages, taken as true and viewed in the light most favorable to Lewis, alleges facts upon [which] the City, if a private entity, would be liable."); Landsman v. City of Vero Beach, No. 13- 14375-CIV, 2013 WL 12077480, at *2 (S.D. Fla. Dec. 12, 2013) (finding that plaintiff alleging excessive force by a police officer sufficiently pleaded negligent training claim against the city). Nevertheless, we conclude that count three must still be dismissed because it is barred by the discretionary function exception. See Com. Carrier Corp. v. Indian River County, 371 So. 2d 1010, 1020 (Fla. 1979). Under the discretionary function exception, "basic judgmental or discretionary governmental functions are immune from legal action, whereas operational acts are not protected by sovereign immunity." Pollock, 882 So. 2d at 933. Discretionary functions involve "an exercise of executive or legislative power such that a court's intervention by way of tort law would inappropriately entangle the court in fundamental questions of policy and planning." City of Freeport v. Beach Cmty. Bank, 108 So. 3d 684, 690 (Fla. 1st DCA 2013) (quoting Mosby v. Harrell, 909 15 So. 2d 323, 328 (Fla. 1st DCA 2005)). Operational functions, on the other hand, are "not necessary to or inherent in policy or planning" and "merely reflect[] a secondary decision as to how those policies or plans will be implemented." Id. at 690 (quoting Dep't of Health & Rehab. Servs. v. B.J.M., 656 So. 2d 906, 911 n.4 (Fla. 1995)). Bogle states that the complaint alleges that the Sheriff was "operationally" negligent in the implementation of established departmental policies and procedures such as the appropriate use of force while detaining an individual. Appellants respond that the only operational function alleged in count three is not directed at the Sheriff but is instead directed towards those officers who might, as a result of the Sheriff's inadequate training, "make operational decisions in direct contrast to their established duties and Constitutional protections." Appellants suggest that sovereign immunity applies to count three because the allegations therein challenge decisions of how to train and what subject matter to include in the training. It is well established that the "decision regarding how to train [law enforcement] officers and what subject matter to include in the training is clearly an exercise of governmental discretion regarding 16 fundamental questions of policy and planning." Lewis, 260 F.3d at 1266; see also Cook ex rel. Est. of Tessier v. Sheriff of Monroe Cnty., Fla., 402 F.3d 1092, 1117-18 (11th Cir. 2005). Here, the pertinent allegations in count three clearly relate to the Sheriff's decisions of how to train his deputies and what subject matter to include in said training. These alleged deficiencies in the Sheriff's training of his deputies involve discretionary, planning-level functions for which the Sheriff is entitled to sovereign immunity. See, e.g., Whitaker v. Miami-Dade County, 126 F. Supp. 3d 1313, 1331 (S.D. Fla. 2015) (allegations that county failed "to adequately train its police officers to employ safe, reasonable and necessary techniques" during encounters with potential suspects involved discretionary governmental functions for which the county was immune from liability). Accordingly, count three must also be dismissed with prejudice. V. Conclusion We hold that the trial court erroneously denied Appellants' motion to dismiss as to counts one and three, and we reverse and remand with instructions for the trial court to dismiss those counts 17 with prejudice. We affirm the denial of Appellants' motion to dismiss as to count two. Affirmed in part, reversed in part, and remanded. NORTHCUTT and SILBERMAN, JJ., Concur. Opinion subject to revision prior to official publication. 18