Russell v. Smith et al
ORDER granting 46 Motion for Summary Judgment. Signed by District Judge William H. Steele on 10/6/17. (tgw)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
JUSTIN HENDRIX, etc., et al.,
) CIVIL ACTION 16-0174-WS-N
This matter is before the Court on the defendants’ motion for summary
judgment. (Doc. 46). The parties have filed briefs and evidentiary materials in
support of their respective positions, (Docs. 46, 53, 56),1 and the motion is ripe for
resolution. After careful consideration, the Court concludes the motion is due to
According to the amended complaint, (Doc. 20), in April 2014 the plaintiff
was at the Escambia County probation office with her daughter. As she was
leaving, the two defendants arrested her. The defendants, Justin Hetrick2 and
Preston Hill, are sheriff’s deputies. The sole remaining count of the complaint
alleges that the arrest was unsupported by probable cause and that the defendants
used excessive force in executing the arrest, in violation of the plaintiff’s Fourth
Because the plaintiff filed her brief twice, (Docs. 52, 53), the Court considers
only the one more recently filed.
The parties appear to agree that this is the correct name of this defendant. (Doc.
46-1 at 2; Doc. 52 at 2).
and Fourteenth Amendment rights.3 The defendants are sued exclusively in their
individual capacities. (Doc. 20 at 1).
Summary judgment should be granted only if “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 party seeking summary judgment bears “the initial
burden to show the district court, by reference to materials on file, that there are no
genuine issues of material fact that should be decided at trial.” Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its
burden in either of two ways: (1) by “negating an element of the non-moving
party’s claim”; or (2) by “point[ing] to materials on file that demonstrate that the
party bearing the burden of proof at trial will not be able to meet that burden.” Id.
“Even after Celotex it is never enough simply to state that the non-moving party
cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228 F.3d 1305,
1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).
“When the moving party has the burden of proof at trial, that party must
show affirmatively the absence of a genuine issue of material fact: it must support
its motion with credible evidence ... that would entitle it to a directed verdict if not
controverted at trial. [citation omitted] In other words, the moving party must
show that, on all the essential elements of its case on which it bears the burden of
proof, no reasonable jury could find for the nonmoving party.” United States v.
Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc)
(emphasis in original); accord Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115
(11th Cir. 1993).
“If the party moving for summary judgment fails to discharge the initial
burden, then the motion must be denied and the court need not consider what, if
The Court previously dismissed all other counts on motion of the defendants.
any, showing the non-movant has made.” Fitzpatrick, 2 F.3d at 1116; accord
Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.
“If, however, the movant carries the initial summary judgment burden ...,
the responsibility then devolves upon the non-movant to show the existence of a
genuine issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “If the nonmoving
party fails to make ‘a sufficient showing on an essential element of her case with
respect to which she has the burden of proof,’ the moving party is entitled to
summary judgment.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett,
477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a
party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may …
consider the fact undisputed for purposes of the motion ….”).
In deciding a motion for summary judgment, “[t]he evidence, and all
reasonable inferences, must be viewed in the light most favorable to the
nonmovant ….” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243
(11th Cir. 2003). “Therefore, the plaintiff’s version of the facts (to the extent
supported by the record) controls, though that version can be supplemented by
additional material cited by the defendants and not in tension with the plaintiff’s
version.” Rachel v. City of Mobile, 112 F. Supp. 3d 1263, 1274 (S.D. Ala. 2015),
aff’d, 633 Fed. Appx. 784 (11th Cir. 2016).
The plaintiff has presented evidence from herself, from her daughter
Angelica Dawson, and from Officer Martesha Lee, a juvenile probation officer.
Dawson was transported to the sheriff’s office from her school to meet with Lee
regarding issues at school. They and the plaintiff met in Lee’s office. The
plaintiff became upset (mostly at her daughter) and began to talk loudly. Due to
the plaintiff’s loudness, several deputies arrived at Lee’s office, per protocol, to
ensure everything was alright. The plaintiff and Dawson left Lee’s office to
continue their discussion outside. As they were headed to the side exit, Hetrick
ran up to the plaintiff and told her to get the f--- out of here, that this was a public
place and that she was making a scene. Dawson went out the side door but, as the
plaintiff was doing so, Hetrick attempted to trip her. She told Hetrick that, if he
was going to trip her, she would go out the main exit. Hetrick followed the
plaintiff inside, grabbed her by the neck and put her up against a wall, choking her.
The plaintiff turned and asked Hetrick why he was choking her, and he told her
she should have gotten the hell out of here while she had the chance. The plaintiff
remembered she had a knife on her person, and she was going to retrieve it but the
Lord told her not to do so. Hetrick kicked the plaintiff in the back of her legs, and
she went to her knees. He then kicked her in the back, and she went prone on the
floor. Hetrick then kneed the plaintiff in the back, and Hill placed his knee on the
side of her face. (Doc. 53 at 1-3; Docs. 53-1, -2, -3).
That is the plaintiff’s evidence and, as noted, on motion for summary
judgment it is controlling as far as it goes. The defendants, however, can
supplement her evidence with their own, so long as that evidence is consistent
with the plaintiff’s evidence and the reasonable inferences therefrom.
The plaintiff was so angry that Lee was concerned she would begin fighting
her daughter in the office. (Doc. 46-2 at 59). She was so loud and angry that
multiple officers came to the office door to make sure everyone was alright. (Id.
at 31, 66, 72). The secretary at the front desk heard the plaintiff holler and went to
Hetrick’s office to inform him of the situation. (Id. at 28-31, 64). Outside Lee’s
office, the plaintiff was screaming and hollering and announcing that she had a
knife. (Id. at 32, 72). Hetrick, unsure whether the plaintiff had a knife, pinned the
plaintiff’s arms against the wall, she facing him. (Id. at 30, 32, 67). Hetrick told
the plaintiff she was under arrest and instructed her to put her hands behind her
back. He tried to turn the plaintiff around to apply handcuffs, but she began to
pull or push away from him. Hetrick at that point put the plaintiff on the ground
and handcuffed her. (Id. at 24, 30, 32, 37).
The plaintiff does not address or deny any of this evidence, which is
consistent with, but expands upon, her version of events.4 The defendant’s
evidence therefore must be taken as uncontroverted and considered along with the
plaintiff’s evidence in evaluating her claims.
Synthesized, the evidence most favorable to the plaintiff is that she was
shouting angrily, to the point Lee feared a physical fight. Hetrick crudely ordered
the plaintiff out of the building but she refused to comply, instead turning around
and returning to the building’s interior. Hetrick followed the plaintiff, grabbed her
around the neck, put her against a wall and began choking her. (This was not a
literal “choke,” in the sense of cutting off air supply, because the plaintiff turned
and spoke to Hetrick.) Either at this point or previously, the plaintiff began yelling
about having a knife. Hetrick then pinned the plaintiff’s arms to the wall, placed
her under arrest, and ordered her to turn around. The plaintiff instead pushed or
pulled away. Hetrick then kicked the plaintiff in the legs, causing her to go to her
knees, and then kicked her in the back, causing her to go to the floor, where
Hetrick kneed her in the back and handcuffed her while Hill kneed her in the side
of her face.
II. False Arrest.
“A warrantless arrest without probable cause violates the Constitution and
provides a basis for a section 1983 claim.” Case v. Eslinger, 555 F.3d 1317, 1326
(11th Cir. 2009) (internal quotes omitted). However, “[t]he existence of probable
cause at the time of arrest ... constitutes an absolute bar to a section 1983 action
for false arrest.” Id. at 1326-27 (internal quotes omitted). “Probable cause to
arrest exists when law enforcement officials have facts and circumstances within
The defendants also have evidence the plaintiff threatened to cut and kill the
m-----f-----s. (Doc. 46-2 at 72-73). Because the plaintiff denies having threatened to cut
anyone, (Doc. 53-3 at 4), the Court does not consider the defendants’ contrary evidence.
their knowledge sufficient to warrant a reasonable belief that the suspect had
committed or was committing a crime.” Id. at 1327 (internal quotes omitted).
The plaintiff was charged with disorderly conduct, pleaded guilty to that
offense, and was placed on probation. (Doc. 46-2 at 49-50). Such a plea may
establish probable cause as a matter of law for purposes of a constitutional false
arrest claim. See Stephens v. DeGiovanni, 852 F.3d 1298, 1320 n.20 (11th Cir.
2017) (“Stephens provided probable cause for his arrest by his nolo contendere
plea, which defeated the false-arrest cause of action in his § 1983 case.”). To the
extent the preclusive effect of a conviction based on a guilty plea depends on
whether the state of conviction would recognize it as legally establishing probable
cause, id. at 1319-20, it seems clear that Alabama would do so. See Gaddis v.
Ledbetter, 2017 WL 3841935 at *2 (N.D. Ala. 2017) (describing Alabama law
regarding this issue). The plaintiff identifies no reason her conviction on guilty
plea should not be given preclusive effect.
In any event, it is clear from the evidence that Hetrick observed the plaintiff
engage in disorderly conduct as that term is used in the Alabama Criminal Code.
See, e.g., Sterling v. State, 701 So. 2d 71, 72, 74-75 (Ala. Crim. App. 1997)
(where the plaintiff repeatedly asked why his application for a pistol permit had
been denied, his voice rising with each iteration, to the point that courthouse
workers heard him and stopped their work to see what was happening, the
evidence supported a conviction for disorderly conduct under Alabama Code §
13A-11-7(a)(2)). Hetrick therefore possessed probable cause to believe that the
plaintiff had committed that offense. The plaintiff offers no argument to the
Because Hetrick had probable cause to arrest the plaintiff for disorderly
conduct, her false arrest claim fails as a matter of law.
III. Excessive Force.
“Fourth Amendment jurisprudence has long recognized that the right to
make an arrest … necessarily carries with it the right to use some degree of
physical coercion or threat thereof to effect it.” Jean-Baptiste v. Gutierrez, 627
F.3d 816, 821 (11th Cir. 2010) (internal quotes omitted). Indeed, “the typical arrest
involves some force and injury.” Reese v. Herbert, 527 F.3d 1253, 1272 (11th Cir.
2008) (internal quotes omitted). However, “[a]ny use of force must be
reasonable,” Jean-Baptiste, 627 F.3d at 821, and “[i]t is clearly established that the
use of excessive force in carrying out an arrest constitutes a violation of the Fourth
Amendment.” Davis v. Williams, 451 F.3d 759, 767 (11th Cir. 2006).
The defendants have asserted the affirmative defense of qualified
immunity. (Doc. 46-1 at 7). “[G]overnment 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 known.” Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). “[T]he burden is first on the defendant to establish that the
allegedly unconstitutional conduct occurred while he was acting within the scope
of his discretionary authority.” Harbert International v. James, 157 F.3d 1271,
1281 (11th Cir. 1998). The burden then shifts to the plaintiff to show that the
defendant’s conduct “violated a clearly established statutory or constitutional
right.” Grayden v. Rhodes, 345 F.3d 1225, 1231 (11th Cir. 2003).
There is no question but that the defendants were acting within the scope of
their discretionary authority. “Because making an arrest is within the official
responsibilities of a sheriff’s deputy, [the defendant] was performing a
discretionary function when he arrested [the plaintiff],” allegedly using excessive
force in the process. Crosby v. Monroe County, 394 F.3d 1328, 1332 (11th Cir.
2004); accord Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (“[[I]t is
clear that [a sheriff’s deputy] was acting within the course and scope of his
discretionary authority when he arrested [the plaintiff] and transported her to
jail.”). Because the conduct of which the plaintiff complains occurred in the
course of an arrest, the defendants acted within the scope of their discretionary
authority. The plaintiff makes no argument to the contrary. See McClish v.
Nugent, 483 F.3d 1231, 1237 (11th Cir. 2007) (where the plaintiff did not dispute
that the deputy was acting within his discretionary authority at the time of the
arrest, the burden shifted to the plaintiff to overcome the qualified immunity
defense). The burden therefore rests on the plaintiff to show that the defendants’
conduct violated her clearly established Fourth Amendment rights.
“The relevant, dispositive inquiry in determining whether a right is clearly
established is whether it would be clear to a reasonable officer that his conduct
was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S. 194, 202
(2001). “In other words, existing precedent must have placed the statutory or
constitutional question beyond debate.” Reichle v. Howards, 132 S. Ct. 2088,
2093 (2012) (internal quotes omitted). “The salient question … is whether the
state of the law at the time of an incident provided fair warning to the defendants
that their alleged conduct was unconstitutional.” Tolan v. Cotton, 134 S. Ct. 1861,
1866 (2014). To attain that level, “the right allegedly violated must be established,
not as a broad general proposition, … but in a particularized sense so that the
contours of the right are clear to a reasonable official.” Reichle, 132 S. Ct. at
2094. The law is clearly established if any of three situations exists.
“First, the words of the pertinent federal statute or constitutional provision
in some cases will be specific enough to establish clearly the law applicable to
particular conduct and circumstances to overcome qualified immunity, even in the
total absence of case law.” Vinyard, 311 F.3d at 1350 (emphasis omitted). The
requisite fair and clear notice can be given without case law only “[i]n some rare
cases.” Williams v. Consolidated City of Jacksonville, 341 F.3d 1261, 1270 (11th
Cir. 2003). The plaintiff does not assert that the language of the Fourth
Amendment, standing alone, made it clear that the defendants’ conduct was
“Second, ... some broad statements of principle in case law are not tied to
particularized facts and can clearly establish law applicable in the future to
different sets of detailed facts.” Vinyard, 311 F.3d at 1351. “For example, if some
authoritative judicial decision decides a case by determining that ‘X Conduct’ is
unconstitutional without tying that determination to a particularized set of facts,
the decision on ‘X Conduct’ can be read as having clearly established a
constitutional principle: put differently, the precise facts surrounding ‘X Conduct’
are immaterial to the violation.” Id. “[I]f a broad principle in case law is to
establish clearly the law applicable to a specific set of facts facing a government
official, it must do so with obvious clarity to the point that every objectively
reasonable government official facing the circumstances would know that the
official’s conduct did violate federal law when the official acted.” Id. (internal
quotes omitted). “[S]uch decisions are rare,” and “broad principles of law are
generally insufficient to clearly establish constitutional rights.” Corey Airport
Services, Inc. v. Decosta, 587 F.3d 1280, 1287 (11th Cir. 2009).
“Third, [when] the Supreme Court or we, or the pertinent state supreme
court has said that ‘Y Conduct’ is unconstitutional in ‘Z Circumstances,’” then if
“the circumstances facing a government official are not fairly distinguishable, that
is, are materially similar [to those involved in the opinion], the precedent can
clearly establish the applicable law.” Vinyard, 311 F.3d at 1351-52.
When case law is utilized to show that the law was clearly established, the
plaintiff must “point to law as interpreted by the Supreme Court [or] the Eleventh
Circuit,” and such case law must pre-date the challenged conduct. Mercado v.
City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005). Moreover, “[t[he law
cannot be established by dicta[, which] is particularly unhelpful in qualified
immunity cases where we seek to identify clearly established law.” Santamorena
v. Georgia Military College, 147 F.3d 1337, 1342 n.13 (11th Cir. 1998) (internal
When, as here, the defendants have probable cause to arrest, their
subjective intent is irrelevant,5 and the constitutional issue is measured by whether
the force employed was “‘objectively reasonable’ in light of the facts and
circumstances [the defendants] faced at the time, ‘including the severity of the
crime at issue, whether the suspect pose[d] an immediate threat to the safety of the
officers or others, and whether he [was] actively resisting arrest or attempting to
evade arrest by flight.’” Reese, 527 F.3d at 1272 (quoting Graham v. Connor, 490
U.S. 386, 396 (1989)). These are the factors the plaintiff asks the Court to
consider. (Doc. 53 at 3, 5). “The reasonableness of a particular use of force must
be judged from the perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. And “[t]he
calculus of reasonableness must embody allowance 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.” Id. at 396-97.
Because they invoke qualified immunity, it is not enough for the plaintiff to
show that the defendants employed unconstitutionally excessive force in effecting
her arrest; instead, she must show that pertinent case law “would inevitably lead
every reasonable officer in [their] position to conclude the force was unlawful.”
Jean-Baptiste, 627 F.3d at 821 (internal quotes omitted).
Disorderly conduct is a crime “of minor severity.” Vinyard, 311 F.3d at
1347. However, it is uncontroverted that the plaintiff had just refused an order to
leave the building, that she was actively resisting arrest,6 and that, because she
Thus, as the plaintiff concedes, it is “of no moment” whether Hetrick attempted
to trip her. (Doc. 53 at 5).
Although the plaintiff’s brief announces that she was not resisting arrest, (Doc.
52 at 6), “[s]tatements by counsel in briefs are not evidence.” Travaglio v. American
Express Co., 735 F.3d 1266, 1270 (11th Cir. 2013) (internal quotes omitted). The
uncontroverted evidence, as discussed in Part I, is that the plaintiff did resist arrest.
angrily insisted she had a knife, she posed an immediate threat to the safety of
Hetrick and others in the vicinity. Pinning the plaintiff’s arms to the wall would
appear to be a reasonable response to the threat she posed, since it temporarily
prevented her from retrieving her knife.7 Kicking the plaintiff in the back of her
legs and then in the back would appear to be a reasonable response to the
plaintiff’s refusal to present her arms for handcuffing, since (as she admits) it
caused her to go to her knees and then to the floor, allowing her to be handcuffed
and the threat of her retrieving her knife eliminated.8 And Hill’s placing his knee
on the plaintiff’s face (and Hetrick’s placing his knee on her back) would appear
to be reasonable, as there is no evidence she was already handcuffed and as she
had just claimed to have a knife.9
See, e.g., Long v. Slaton, 508 F.3d 576, 581 (11th Cir. 2007) (“Even if we accept
that the threat posed by [the decedent] to [the defendant] was not immediate …, the law
does not require officers in a tense and dangerous situation to wait until the moment a
suspect uses a deadly weapon to act to stop the suspect.”).
See, e.g., Brown v. City of Huntsville, 608 F.3d 724, 740 (11th Cir. 2010) (“For
even minor offenses, permissible force includes physical restraint, use of handcuffs, and
pushing into walls.”); Rodriguez v. Farrell, 280 F.3d 1341, 1352 (11th Cir. 2002)
(handcuffing a non-threatening, non-resisting suspect by grabbing his arm, twisting it
around his back and jerking it up high to the shoulder is not excessive force); Nolin v.
Isbell, 207 F.3d 1253, 1255-57 (11th Cir. 2000) (handcuffing a non-resisting, nonthreatening suspect by grabbing him from behind by the shoulder and wrist, throwing him
against a van several feet away, kneeing him in the back and pushing his head into the
side of the van did not constitute excessive force); Gomez v. United States, 601 Fed.
Appx. 841, 843, 851 (11th Cir. 2015) (handcuffing a non-resisting, non-threatening
suspect by grabbing him by the neck, choking him and slamming his head against a
vehicle did not constitute excessive force); Sullivan v. City of Pembroke Pines, 161 Fed.
Appx. 906, 907, 910 (11th Cir. 2006) (handcuffing a suspect by grabbing her arm, pulling
her arms behind her back, pushing her to the ground and placing a knee on her back did
not constitute excessive force).
“A police officer is entitled to continue his use of force until a suspect thought to
be armed is fully secured.” Jean-Baptiste, 627 F.3d at 821 (internal quotes omitted).
See, e.g., Crosby v. Monroe County, 394 F.3d 1328, 1334 (11th Cir. 2004) (where the
suspect was on the ground but not yet handcuffed and might have had weapons concealed
on his person, the defendant did not employ excessive force by putting his foot on the
Viewing the evidence in the light most favorable to her, Hetrick grabbed
the plaintiff by the neck and choked her before she resisted arrest or declared that
she had a knife (but just after she refused to obey his order to leave the building).10
As noted, the evidence does not support a reasonable inference that the plaintiff’s
breathing was impaired. At any rate, the Eleventh Circuit has already decided that
it was “not excessive force to arrest [a] plaintiff for [a] building code violation by
pushing him up against [a] wall and applying [a] chokehold to [the] unresisting
plaintiff while affixing handcuffs.” Brown v. City of Huntsville, 608 F.3d 724, 740
(11th Cir. 2010) (describing Post v. City of Fort Lauderdale, 7 F.3d 1552 (11th Cir.
As noted by the defendants, (Doc. 46-1 at 11), another formulation of
factors to be considered in evaluating the use of force includes “(1) the need for
the application of force, (2) the relationship between the need and amount of force
used, and (3) the extent of the injury inflicted.” Stephens, 852 F.3d at 1324
(internal quotes omitted). The first two of these factors are “subsumed in [a]
discussion of the Graham factors.” Id. at 1324-25. As for the third, “[t]he nature
and extent of physical injuries sustained by a plaintiff are relevant in determining
whether the amount and type of force used by the arresting officer were
excessive.” Id. at 1325 (emphasis omitted).
The plaintiff asserts that she “suffered injuries to her back” as a result of
her encounter with the defendants. (Doc. 53 at 3). She testified that her back was
X-rayed a few days after the incident and that the doctor told her the X-ray
revealed a pinched lumbar nerve, which he attributed to the encounter. (Doc. 53-3
at 16). The plaintiff, however, has offered no testimony from the physician, and
Although the evidence would support the inference that this use of force
occurred before Hetrick told the plaintiff she was under arrest, the plaintiff insists that
Hetrick’s choking of her be evaluated as part of the arrest using the Graham factors.
(Doc. 53 at 3, 5). The Court obliges that request.
the medical records she has submitted do not support her testimony.11 Even if her
hearsay testimony is considered,12 it does not support a determination that Hetrick
applied unconstitutionally excessive force.
When the Eleventh Circuit has considered the extent of injury as supporting
a constitutional violation, it has generally done so in the context of force applied
against a non-threatening, non-resisting suspect or citizen. See, e.g., Stephens, 852
F.3d at 1325-26 (collecting cases). In such a situation, the degree of injury is not a
significant consideration, because “[g]ratuitious use of force when a criminal
suspect is not resisting arrest constitutes excessive force.” Id. at 1327-28 (internal
quotes omitted). So long as the force employed in such a situation is more than de
minimis, it is unconstitutional, and the extent of injury need be considered only to
show that the force was not de minimis. Id. at 1327 (“[T]he amount of force used
by [the defendant] in arresting [the plaintiff], which caused his severe and
permanent injuries, documented by treating physicians, forecloses any de minimis
The radiologist interpreted the X-ray as revealing only well-maintained
vertebral body heights and intervertebral disc spaces, with no fracture or subluxation.
(Doc. 53-4 at 8).
“A party may object that the material cited to support or dispute a fact cannot
be presented in a form that would be admissible in evidence.” Fed. R. Civ. P. 56(c)(2).
In such an event, “[t]he burden is on the proponent to show that the material is admissible
as presented or to explain the admissible form that is anticipated.” Id. official
commentary 2010 amendment. However, “if evidence otherwise inadmissible provoked
no timely objection, it could and, if material, should be factored into a summary
judgment decision.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016
(11th Cir. 1987). This rule applies to hearsay evidence, at least if the evidence is in fact
capable of being reduced to admissible form at trial. Jones v. UPS Ground Flight, 683
F.3d 1283, 1294 n.37 (11th Cir. 2012). The defendant has not objected to the plaintiff’s
evidence as hearsay, but it is unclear whether the plaintiff could reduce her hearsay
evidence to admissible form by calling the physician at trial. See Shaw v. City of Selma,
241 F. Supp. 3d 1253, 1264 (S.D. Ala. 2017) (the plaintiff could not reduce hearsay to
admissible form at trial because he failed to disclose the declarant as a witness).
The plaintiff, however, was not non-threatening or non-resisting, and under
those circumstances the Constitution permits a greater degree of force. “When
more force is required to effect an arrest without endangering officer safety, the
suspect will likely suffer more severe injury, but that alone does not make the use
of that amount of force unreasonable.” Mobley, 783 F.3d at 1355 (ruling that the
plaintiff’s broken nose, broken teeth, cuts and bruises did not support a
constitutional violation under the circumstances presented). Even “serious
injuries” will not establish liability when they “were not the result of
disproportionate or excessive force, but were rather the result of objectively
reasonable actions” by the defendant. Crenshaw v. Lister, 556 F.3d 1283, 1293
(11th Cir. 2009). By yelling that she had a knife, by disobeying an order to leave
the building, and by pulling or pushing away from the arresting officer rather than
presenting her hands for handcuffing as ordered, the plaintiff ensured that more
force was required to effect her arrest; that she suffered a pinched nerve as a result
does not render the force employed unconstitutional.
It may (or may not) be that the plaintiff could have been safely secured with
less force than the defendants employed. That, however, is not the constitutional
test. “Not every push or shove, even if it may later seem unnecessary in the peace
of a judge’s chambers, violates the Fourth Amendment.” Saucier, 533 U.S. at 209
(internal quotes omitted). It is “the perspective of a reasonable officer on the
scene” that matters, and such officers are given allowance for the “tense,
uncertain, and rapidly evolving” situations in which they find themselves.
Graham, 490 U.S. at 396-97. Viewing the uncontroverted evidence through the
correct legal prism, the Court cannot conclude that the defendants used more force
than permitted by the Constitution.
Ultimately, however, the Court need not decide whether the defendants’
conduct violated the Fourth Amendment, because the plaintiff has not met her
burden of demonstrating, by resort to Supreme Court and/or Eleventh Circuit
holdings predating the encounter, that no reasonable officer could have believed
the force employed by the defendants was constitutionally permissible under the
circumstances. The single case on which she relies is Hadley v. Gutierrez, 526
F.3d 1324 (11th Cir. 2008). (Doc. 53 at 6). As the plaintiff acknowledges, Hadley
holds only that the gratuitous use of force against a suspect “while he was
handcuffed and not struggling or resisting” constitutes excessive force. 526 F.3d
at 1330. As discussed above, the plaintiff presented no evidence that she was
handcuffed and compliant when any of the alleged force was applied.
“[Q]ualified immunity is only a defense to personal liability for monetary
awards ….” Ratliff v. DeKalb County, 62 F.3d 338, 340 n.4 (11th Cir. 1995). It
therefore “may not be effectively asserted as a defense to a claim for declaratory
or injunctive relief,” D’Aguanno v. Gallagher, 50 F.3d 877, 879 (11th Cir. 1995),
or in defense of an official-capacity claim. Bruce v. Beary, 498 F.3d 1232, 1249
n. 33 (11th Cir. 2007). The plaintiff demands damages but no declaratory or
injunctive relief, (Doc. 20 at 3), and she asserts no official-capacity claim.
Qualified immunity is thus a complete defense.
Because the defendants have established that they acted within their
discretionary authority, and because the plaintiff has not identified any Supreme
Court or Eleventh Circuit holding that would lead every reasonable officer in the
circumstances to understand that the force employed was unconstitutional, the
defendants are entitled to qualified immunity from the plaintiff’s excessive force
For the reasons set forth above, the defendants’ motion for summary
judgment is granted. Judgment shall be entered accordingly by separate order.
DONE and ORDERED this 6th day of October, 2017.
s/ WILLIAM H. STEELE
UNITED STATES DISTRICT JUDGE
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