UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-CV-61172-RAR

SIRGAE JEWELL,

Plaintiff,

v.

TOWN OF DAVIE, et al.,

Defendants.

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ORDER DENYING DEFENDANTS’

MOTION TO DISMISS AND PROVIDING CLARIFICATION 

THIS CAUSE comes before the Court on Defendants Town of Davie and Officer 

Christopher Costello’s Motion to Dismiss the Amended Complaint for Failure to State a Claim 

under Federal Rule of Civil Procedure 12(b)(6) [ECF No. 15] (“Motion”). The Court conducted a 

telephonic hearing to discuss the Motion on December 16, 2020 (“Hearing”). See Paperless 

Minute Entry [ECF No. 31]. The Court having heard argument from all parties and carefully 

reviewed Plaintiff’s Complaint [ECF No. 1], the Motion, Plaintiff’s Response in Opposition [ECF 

No. 20], and Defendants’ Reply [ECF No. 25], and being otherwise fully advised, it is 

ORDERED AND ADJUDGED that the Motion is DENIED as follows:

1. As stated on the record at the Hearing, Defendants WITHDRAW their Motion to 

Dismiss Counts I, III, IV, and VI of Plaintiff’s Complaint. Thus, Defendants only challenge 

Counts II, V, and VII.

2. Defendants sought clarity as to whether Count II is being pursued against 

Defendant Officer Costello, the Town of Davie, or both. See Reply at 2. As acknowledged by 

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Plaintiff on the record at the Hearing, Count II is being pleaded only against Defendant Officer 

Costello. Noting that clarification, the Court DENIES Defendants’ Motion to Dismiss Count II 

of Plaintiff’s Complaint.

3. Defendants’ Motion to Dismiss Counts V and VII is DENIED. Defendants argue 

that Plaintiff’s claims against Defendant Town of Davie for false imprisonment (Count V) and 

excessive force (Count VII) under Florida law are barred by sections 768.28(6)(a) and (9)(a) of 

the Florida Statutes. See generally Mot. at 4-5, 7. 

Section 768.28(9)(a) bars tort claims against “the state or one of its subdivisions” for officer 

actions where the officer 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). Here, 

Plaintiff alleges that Officer Costello acted “with bad faith, malicious purpose, or with willful,

wanton, and deliberate indifference to Jewell’s rights, health, and safety” throughout the alleged 

incident. Compl. ¶¶ 34, 41. Although Defendants are correct that such allegations—if proven—

would immunize the Town of Davie from liability for false imprisonment and excessive force 

under section 768.28(9)(a), Federal Rule of Civil Procedure 8(e)(2) permits a plaintiff to plead 

alternative theories of recovery. And “the nature of Fla. Stat. § 768.28 tends to require a plaintiff 

to plead alternative and inconsistent claims against a governmental entity and its employees.” 

Valdes v. Miami-Dade Cty., No. 12-22426-CIV, 2013 WL 5429938, at *10 (S.D. Fla. Sept. 27, 

2013) (Moreno, J.) (citation omitted). Therefore, although Plaintiff cannot ultimately prevail on 

his excessive force and false imprisonment claims against both Officer Costello and the Town of 

Davie, “he is not foreclosed from making inconsistent allegations at the pleading stage.” Id. at 

*18; see also Hayden v. Broward Cty., No. 12-62278-CIV, 2013 WL 4786486, at *16 (S.D. Fla. 

Sept. 6, 2013) (“Defendants are correct, in principle. Under Section 768.28(9)(a), an individual 

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officer or a governmental entity—but not both—can be held liable. But Plaintiff may plead 

inconsistent and mutually exclusive claims. Therefore, although Plaintiff may not recover from 

both the individuals and their employers, Plaintiff’s inconsistent claims cannot provide a basis for 

dismissal.”) (internal citations omitted). 

4. Lastly, Defendants also quarrel with Plaintiff’s failure to comply with section 

768.28(6)(a) of the Florida Statutes, which provides as follows:

An action may not be instituted on a claim against the state or one 

of its agencies or subdivisions unless the claimant presents the claim 

in writing to the appropriate agency, and also, except as to any claim 

against a municipality or the Florida Space Authority, presents such 

claim in writing to the Department of Financial Services, within 3 

years after such claim accrues and the Department of Financial 

Services or the appropriate agency denies the claim in writing.

“Satisfaction of the Florida notice requirements set forth in Fla. Stat. § 768.28(6)(a) is a condition 

precedent to maintaining a lawsuit.” Fletcher v. City of Miami, 567 F. Supp. 2d 1389, 1393 (S.D. 

Fla. 2008) (citations and alterations omitted). Although Defendants correctly point out that 

Plaintiff did not allege compliance with the statutory notice requirements in his Complaint, 

Plaintiff informed Defendants and the Court at the Hearing that he has in fact complied with said 

requirements and has agreed to furnish proof of compliance. Therefore, Defendants’ Motion to 

Dismiss Counts V and VII based on a failure to comply with section 768.28(6)(a) is DENIED

without prejudice, and Plaintiff shall file a Notice of Compliance with section 768.28(6)(a) with 

the Court by no later than Friday, December 18, 2020.

DONE AND ORDERED in Fort Lauderdale, Florida this 16th day of December, 2020.

 _________________________________

 RODOLFO A. RUIZ II

 UNITED STATES DISTRICT JUDGE

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