Morales v. Ellis
Filing
45
OPINION AND ORDER granting 14 Motion for summary judgment. The Clerk shall enter judgment accordingly, terminate any pending motions and deadlines, and close the file. Signed by Judge John E. Steele on 9/21/2011. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
WILLIAM MORALES,
Plaintiff,
vs.
Case No.
2:10-cv-249-FtM-29SPC
CAPTAIN ELLIS,
Defendant.
__________________________________
OPINION AND ORDER
I. Status
This matter comes before the Court upon review of Defendant
Ellis' Motion for Summary Judgment (Doc. #14, Motion).
Defendant
submits the following exhibits in support: a closed circuit video
recording of the incident at issue without sound (Exh. A, in
camera); Affidavit of Rodney Ellis (Exh. B), Affidavit of Richard
Malo (Exh. C), and Affidavit of Suzanne Vanhise-Fowles (Exh. D).
Plaintiff
filed
a
pleading
entitled
“Amended Motion for
Summary Judgment,” after being granted leave, in response to Ellis'
Motion (Doc. #30, Plaintiff's Motion). Plaintiff's Motion attaches
the following exhibits in support: a blank “Refusal of Health Care
Affidavit” form (Exh. A), declaration of William Morales (Exh. B),
and declaration of Gary Burton (Exh. C).1
1
The statements submitted by Morales and Burton are each
labeled as an “Affidavit” but were not sworn to by the declarants
before an officer authorized to administer oaths, such as a notary
public. Under 28 U.S.C. § 1746, a declaration submitted “under the
penalty of perjury, and dated” is admissible in lieu of a sworn
(continued...)
As directed, Defendant filed a response to Plaintiff's Motion
and argues that, although framed as a Motion, the pleading actually
presents only argument in opposition to Ellis' Motion summary
judgment (Doc. #32, Ellis' Response).
Defendant points out that
Plaintiff acknowledges that there are material facts in dispute;
and, therefore Plaintiff cannot obtain summary judgment.
Response at 3.
Ellis'
After obtaining leave from the Court, Plaintiff
filed a reply to Ellis' Response (Doc. #38, Plaintiff's Reply) with
the following supplemental exhibits: an undated statement by Albert
Walker,2 declaration of Gary Burton, blank “Refusal of Health
Services
Affidavit”
form,
and
blank
“Consent
/Refusal
Form.”
Plaintiff contends that the counter-statements he submits creates
“genuine issues of material fact” and the Court should deny summary
judgment to Defendant.
Upon
review
of
Plaintiff's Motion at 2, ¶7.
Plaintiff's
Motion,
Ellis'
Response,
and
Plaintiff's Reply, the Court construes Plaintiff's “Motion” as a
1
(...continued)
affidavit on a motion for summary judgment.
Consequently, the
Court construes the statements by Morales and Burton admissible
evidence as declarations.
2
Walker's statement is labeled an “Affidavit,” but it fails to
comply with the procedural requirements to be considered either an
affidavit or a declaration. The statement by Walker is not dated
and is not sworn to under penalty of perjury. See Wells v. Cramer,
262 F. App’x 184, 2008 WL 110088 *3 (11th Cir. 2008)(stating
“Federal law . . . does not provide an alternative to making a
sworn statement, but requires that the statement include a
handwritten averment, signed and dated, that the statement is true
under the penalties of perjury.”). Consequently, the Court does
not consider Walker's Affidavit as evidence in this matter.
-2-
response in opposition to Defendant's Motion, not as a cross motion
for summary judgement.
Defendant’s motion is ripe for review.
II. Summary Judgment Standard
“Summary judgment is appropriate when the evidence, viewed in
the light most favorable to the nonmoving party, presents no
genuine issue of fact and compels judgment as a matter of law.”
Swisher Int’l, Inc. v. Schafer, 550 F.3d 1046, 1050 (11th Cir.
2008); Fed. R. Civ. P. 56(c).
An issue is “genuine” if there is
sufficient evidence such that a reasonable jury could return a
verdict for either party.
U.S. 242, 248 (1986).
Anderson v. Liberty Lobby, Inc., 477
The moving party bears the burden of
identifying those portions of the pleadings, depositions, answers
to interrogatories, admissions, and/or affidavits which it believes
demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hickson Corp.
v. N. Crossarm Co., Inc., 357 F.3d 1256, 1259-60 (11th Cir. 2004).
The standard for creating a genuine dispute of fact requires courts
to “make all reasonable inferences in favor of the party opposing
summary judgment,” Chapman v. Al Transp., 229 F.3d 1012, 1023 (11th
Cir. 2000)(en banc) (emphasis added), not to make all possible
inferences in the non-moving party’s favor.
“A factual dispute
alone is not sufficient to defeat a properly pled motion for
summary judgment.”
495-FTM-33DNF,
Teblum v. Eckerd Corp. of Fla., Inc., 2:03-cv-
2006
WL
288932
*1
-3-
(M.D.
Fla.
Feb.
7,
2006).
Instead, “[o]nly factual disputes that are material under the
substantive law governing the case will preclude entry of summary
judgment.”
Lofton v. Sec’y Dep’t of the Children & Family Servs.,
358 F.3d 804, 809 (11th Cir. 2004)(citing Anderson, 477 U.S. at
247-48). The moving party bears the burden of demonstrating to the
Court that based upon the record no genuine issues of material fact
exist that should be decided at trial.
Hickson Corp. v. N.
Crossarm Co., Inc., 357 F.3d at 1260(citing Celotex, 477 U.S. at
323).
personal
Further,
“allegations
knowledge,
and
not
in
affidavits
be
based,
must
even
in
be
based on
part,
‘upon
information and belief.’” Pittman v. Tucker, 213 F. App'x 867, 870
(11th Cir. 2007)(quoting Pace v. Capobianco, 283 F.3d 1275, 1278
(11th Cir. 2002)).
To avoid the entry of summary judgment, a party faced with a
properly supported summary judgment motion “bears the burden of
persuasion” and must come forward with extrinsic evidence, i.e.,
affidavits,
depositions,
answers
to
interrogatories,
and/or
admissions, and “set forth specific facts showing that there is a
genuine issue for trial.”
Beard v. Banks, 548 U.S. 521, 529
(2006)(citations omitted); Celotex, 477 U.S. at 322; Hilburn v.
Murata Elecs. N. Am., Inc., 181 F.3d 1220, 1225 (11th Cir. 1999).
If there is a conflict in the evidence, the non-moving party’s
evidence is to be believed and “all justifiable inferences”,
Anderson, 477 U.S. at 255, must be drawn in favor of the non-moving
-4-
party,
but
those
inferences
are
drawn
“only
to
the
extent
supportable by the record,” Penley v. Eslinger, 605 F.3d 843, 848
(11th Cir. 2010)(citation omitted).
The court, however, “must
distinguish between evidence of disputed facts and disputed matters
of professional judgment.
In respect to the latter, [the court’s]
inferences
deference
must
authorities.”
accord
Beard, 548 U.S. at 530.
to
the
views
of
prison
“A court need not permit
a case to go to a jury, however, when the inferences that are drawn
from the evidence, and upon which the non-movant relies, are
‘implausible.’”
Cuesta v. Sch. Bd. of Miami-Dade County, 285 F.3d
962, 970 (11th Cir. 2002) (citations omitted).
Nor are conclusory
allegations based on subjective beliefs sufficient to create a
genuine issue of material fact.
Leigh v. Warner Bros., Inc., 212
F.3d 1210, 1217 (11th Cir. 2000).
“When opposing parties tell two
different stories, one of which is blatantly contradicted by the
record, so that no reasonable jury could believe it, a court should
not adopt that version of the facts for purposes of ruling on a
motion for summary judgment.”
(2007).
Scott v. Harris, 550 U.S. 372, 380
In the summary judgment context, however, the Court must
construe pro se pleadings more liberally than those of a party
represented by an attorney.
Loren v. Sasser, 309 F.3d 1296, 1301
(11th Cir. 2002).
-5-
III.
Finding of Facts and Applicable Law
Plaintiff is involuntarily confined at the Florida Civil
Commitment Center (“FCCC”) pursuant to the Florida Sexual Violent
Predator (SVP) Act.
The State of Florida enacted the SVP Act by
which a person determined to be a sexually violent predator3 is
required to be housed in a secure facility “for control, care, and
treatment until such time as the person’s mental abnormality or
personality disorder has so changed that it is safe for the person
to be at large.”
Fla. Stat. § 394.917(2).
The SVP Act was
promulgated for the dual purpose “of providing mental health
treatment to sexually violent predators and protecting the public
from these individuals.”
Westerheide v. State, 831 So. 2d 93, 112
(Fla. 2002).
Plaintiff initiated this action by filing a pro se Civil
Rights Complaint (Doc. #1, Complaint).
Plaintiff alleges that his
Due Process rights under the Fourteenth Amendment were violated as
a result of Defendant Ellis subjecting Plaintiff to an unnecessary
and excessive use of force on April 1, 2010.
Id. at 2.
3
A “sexually violent predator” is defined by the Act as any
person who:
(a) Has been convicted of a sexually violent offense; and
(b) Suffers from a mental abnormality or personality
disorder that makes the person more likely to engage in
acts of sexual violence if not confined in a secure
facility for long-term control, care, and treatment.
Section 394.912(10), Fla. Stat. (2008).
-6-
A. Undisputed Facts
The following facts are undisputed by the parties.
On April
1, 2010, Plaintiff returned to the FCCC from the hospital after
having “a heart catheter procedure where a number of stents were
implanted.”
Complaint at 2.
Plaintiff was seen in the FCCC's
medical wing “for a routine reentry evaluation.”
Id.
Medical
staff recommended that Plaintiff needed to spend the evening in the
medical wing.
Id.
Plaintiff refused to stay in the medical wing,
because he finds the medical wing's “environment” to be “highly
stressful.”
Id.
When Plaintiff refused to stay in the medical
wing, medical staff called security.
Id.
Defendant Ellis arrived
and told Plaintiff he could not refuse medical's directive to stay
in the medical wing.
Id.
Plaintiff advised Ellis that he has a
“right to refuse any medical procedure” and “attempted to leave”
the medical infirmary.
Ellis, after following Plaintiff, applied
force to return Plaintiff to the infirmary.
Id.
B. Disputed Facts
1. Plaintiff's version of events
The parties agree that Ellis used some amount of force on
Plaintiff to return Plaintiff to the FCCC's medical infirmary.
According to Plaintiff:
Captain Ellis grabbed me from behind and twisted my arm
up and behind me to the extent that something internally
was torn. Captain Ellis then slammed my head against a
concrete wall causing a large welt to form on my head.
Captain Ellis then kicked my right leg were my surgical
incision was located. When I complained of this [,] he
-7-
slammed a steel door on the same leg several times. With
my injured arm still behind my back [,] he then escorted
me to a security cell [,] locking me within.
Complaint at 2.
Plaintiff claims that, as a result of Ellis' actions, he sustained
injuries to his neck and shoulder, is unable to sleep due to pain,
has a limited range of motion, and experiences “intense headaches
and dizziness.”
Id.
punitive damages.
Plaintiff seeks unspecified compensatory and
Id.
In support of his version of events, Plaintiff submits his own
declaration (Doc. #30-2) and the declaration of resident Burton
(Doc. #30-3).
Plaintiff states a nurse, Suzanne Vanhise-Fowles,
advised him that he was required to spend the night in the
infirmary due to “protocol.”
Doc. #30-2 at 1, ¶3.
Plaintiff told
the nurse that Dr. Lamour, the FCCC physician, had previously
permitted Plaintiff to return to his housing area because the
infirmary causes Plaintiff's “blood pressure to rise.”
¶4.
form.
Id. at 1,
Plaintiff advised the nurse that he would sign a “refusal”
Id., ¶5.
arrived.
The nurse called security and Defendant Ellis
Id. at 2, ¶7.
individual.” Id., ¶8-9.
Ellis is “an extremely large and powerful
Plaintiff advised Ellis that he had a
right to refuse medical treatment.
Id., ¶10.
When Plaintiff
attempted to leave the medical wing, Ellis “pulled” his arm behind
his back,
injuring
his
shoulder.
Plaintiff claims
that the
ligaments in his shoulder “are torn almost in half” and he has been
scheduled for surgery.
Id., ¶16-17.
-8-
Plaintiff claims that the
videotape
of
the
incident
submitted
by
Defendant
“has
been
skillfully edited” and the “incriminating actions of Mr. Ellis have
been removed from this video.” Id. at 3, ¶20-21.
In particular,
Plaintiff states that the video shows Ellis attempting to open the
door and Plaintiff “in the way” and then the two walking through
the door.
Instead, Plaintiff claims that Ellis “slammed the door
into [Plaintiff's] leg three times,” during which time the nurse
shouted that Plaintiff had sutures in his leg.
Id., ¶22. Resident
Burton attests that he “saw Ellis bend the arm of Morales behind
his back and push Morales against the wall.”
2.
Doc. #30-3 at 2, ¶9.
Defendant's version of events
Defendant concedes that he used force on Plaintiff in order to
gain Plaintiff's compliance to return to the infirmary, as ordered
by medical staff.
Motion at 4-5.
However, Defendant claims that
Plaintiff posed a security threat to the FCCC.
Id. at 5, ¶25.
Consequently, Defendant was required to use force, but asserts that
he applied only the “minimum amount of force necessary to control”
Plaintiff.
Id. at 5, ¶25.
In support, Defendant submits his own Affidavit (Doc. #14-1),
the Affidavit of Richard Malo (Doc. #14-2), and Affidavit of
Suzanne Vahhise-Fowles (Doc. #14-3), as well as a videotape of the
incident (Exh. A).
Suzanne Vanhise-Fowles is a nurse assigned to
the FCCC medical infirmary.
Nurse Vanhise-Fowles testifies that
she advised Plaintiff that “it was protocol to stay overnight in
-9-
the infirmary. . . [and] it would be unsafe for him to leave the
infirmary.”
Doc. #14-3 at 1, ¶4-5.
Plaintiff became verbally
abusive toward Defendant Ellis. Id. at 2, ¶9. Plaintiff “began to
leave the infirmary and was called back by staff.”
Id. at 2, ¶6.
Nurse Vanhise-Fowles considered Plaintiff to pose “a very serious
security threat.”
Id., ¶13.
According to Richard Malo, a Therapeutic Security Technician
(“TST”) he heard “yelling in the infirmary [and] went to see what
was going on.”
Doc. #14-2 at 1, ¶¶1, 3, 4-5.
When TST Malo
arrived, he saw Plaintiff arguing with Ellis in the hall telling
Ellis “he could not force him into the infirmary.”
Id., at 2, ¶7.
TST Malo saw Ellis “place [Plaintiff] against the wall.”
2, ¶7.
Id., at
TST Malo saw Ellis place Plaintiff's right arm behind him
and escort Plaintiff back to an isolation room in the infirmary.
Id., ¶8.
TST Malo viewed Plaintiff as a “security threat” and was
“concerned” that Plaintiff “would get out of control.”
Id., ¶11.
Defendant Ellis states that he was called to medical and
advised that a physician ordered Plaintiff to stay in the infirmary
“due to his medical condition and recent procedure.” Doc. #14-1 at
1, ¶4.
Ellis ordered staff to lock the doors of the infirmary.
Id., at 2, ¶5.
Plaintiff “became angry and started punching the
desk within the infirmary.”
Id., ¶9.
Plaintiff became verbally
abusive toward Ellis and refused to stay in the infirmary.
¶10.
Id.,
Ellis followed Plaintiff into the hallway and attempted to
verbally convince Plaintiff to return to the infirmary as ordered
-10-
by the physician.
Id., ¶12.
Ellis ordered Plaintiff to return to
the infirmary, but Plaintiff continued walking down the hall away
from
the
infirmary.
Id.,
¶13.
Ellis
placed
his
hand
on
Plaintiff's back and told him he would escort him back to the
infirmary. Id., ¶14. When Plaintiff pulled away from Ellis, Ellis
placed Plaintiff against the wall in order to hold him.
Id., ¶16.
Ellis again advised Plaintiff that a physician ordered Plaintiff to
stay in the infirmary. Id., ¶19.
When Ellis and Plaintiff reached
the door into the infirmary, Plaintiff attempted to pull away
again.
Id. at 3, ¶20.
Ellis held Plaintiff against the window in
order to prevent Plaintiff “from getting away and posing a further
security threat.”
Id., ¶21.
After opening the door, Ellis placed
Plaintiff into an isolation room in the infirmary.
Id., ¶22.
The Court has reviewed the video submitted by Defendant. Exh.
A. The video is comprised of two parts: the first part depicts the
events in the infirmary, and the second part depicts the events in
the hallway.
The first part shows Plaintiff sitting at a table
with a blood pressure machine to his right and the nurse to his
left taking his pulse.
The nurse appears to be speaking with
Plaintiff, but he is staring in the opposite direction away from
her.
The door to the infirmary opens and Defendant Ellis walks in
and approaches the opposite side of table at which Plaintiff is
seated.
Plaintiff and Ellis can be seen conversing and Plaintiff
appears to be getting agitated.
Plaintiff is gesturing with his
hands and running his hands through his hair.
-11-
At this point
Plaintiff is yelling, he stands up, his mouth is open wide, and he
is gesturing more rapidly with his arms.
Plaintiff is holding a
thick folder in his right hand; and, then abruptly take the folder
and reaches up over his head, slamming the folder down on the
table.
Plaintiff then pounds on the table with his right fist and
walks rapidly out of the door of the infirmary.
Plaintiff through the door.
Ellis follows
Some 27 seconds later,4 Ellis and
Plaintiff are seen walking back through the infirmary door.
Ellis
is standing behind Plaintiff holding Plaintiff's right arm, which
is bent behind Plaintiff's back. Ellis leads Plaintiff into a room
to the right of the door, at which time other staff arrive.
The second video depicts a hallway with a door at the end.
Defendant Ellis is seen walking down the hall and attempting to
enter the doorway into the infirmary, which appears to be locked as
he waits for the door to open.
After some time, Plaintiff is seen
coming through the door into the hallway with Ellis following close
behind him. Defendant Ellis appears to speaking with Plaintiff and
Plaintiff raises his right hand up in the air with his palm facing
Ellis.
Ellis then places his right hand on Plaintiff right upper
arm in an apparent attempt to turn Plaintiff around.
Plaintiff
pulls away from Ellis and Ellis turns Plaintiff toward the wall and
turns Plaintiff's right arm up toward Plaintiff's back.
4
Plaintiff
The video cameras appear to be triggered by movement. There
is a running timer on the videos at the top that moves in fractions
of a second.
-12-
again attempts to pull away from Ellis and Ellis again directs
Plaintiff back toward the wall, but not into the wall.
Ellis
successfully turns Plaintiff back toward the door they exited,
holding Plaintiff with his left arm as he attempts to open the door
with his right hand.
door,
but
Ellis appears to be attempting to open the
Plaintiff's
body
and
Ellis'
body
are
in
the
way.
Eventually, Ellis moves Plaintiff to the left of the door and gets
the door open to go through the door with Plaintiff in front of
him.
A total of approximately 27 seconds elapsed during the time
in which Plaintiff and Ellis are together in the hallway.
C.
Applicable Law
Plaintiff is civilly committed, and the FCCC is not a prison
and Plaintiff is not a prisoner.
1260 (11th Cir. 2002).
Troville v. Venz, 303 F.3d 1256,
The Supreme Court has recognized that an
individual who has been involuntarily civilly confined has liberty
interests under the Due Process Clause of the Fourteenth Amendment
that “require the State to provide minimally adequate or reasonable
training to ensure safety and freedom from undue restraint.”
Youngberg v. Romeo, 457 U.S. 317, 319 (1982).
Thus, the Supreme
Court has opined that, at least in regards to certain aspects of
civil detainees' confinement, they are afforded a higher standard
of care than those who are criminally committed.5
322;
Dolihite
v.
Maughon,
74
5
F.3d
1027,
See Id. at 321-
1041
(11th
Cir.
In Youngberg, the issue was whether a severely retarded young
man had received proper treatment in a state facility. Id. at 309.
-13-
1996)(holding
commitment
are
conditions
of
that
“persons
entitled
confinement
to
subjected
more
than
to
involuntary
considerate
criminals
confinement are designed to punish.”).
whose
civil
treatment
and
conditions
of
See also Lavender v.
Kearney, 206 F. App'x 860, 863 (11th Cir. 2006).
This, however, does not mean that civil detainees are free to
live within the FCCC without any restrictions or limitations. FCCC
residents, like pretrial detainees who are facing criminal charges
or detainees confined in mental hospitals, are not entitled to the
same unrestricted liberties as persons in the outside world. While
residents may object to having to comply with the FCCC's rules and
restrictions, and/or orders given by staff at the institution,
neither the fact of their existence or their imposition gives rise
to a constitutional violation because such does not constitute
punishment. Indeed, the Supreme Court observed this point, opining
in pertinent part, as follows:
Once the Government has exercised its conceded authority to
detain a person . . . it obviously is entitled to employ
devices that are calculated to effectuate this detention.
Traditionally, this has meant confinement in a facility which,
no matter how modern or how antiquated, results in restricting
the movement of a detainee in a manner in which he would not
be restricted if he simply were free to walk the streets
pending trial. Whether it be called a jail, a prison, or a
custodial center, the purpose of the facility is to detain.
Loss of freedom of choice and privacy are inherent incidents
of confinement in such a facility. And the fact that such
detention interferes with the detainee's understandable desire
to live as comfortably as possible and with as little
restraint as possible during confinement does not convert the
conditions or restrictions of detention into “punishment.”
-14-
Bell v. Wolfish, 441 U.S. 520, 537 (1979).
The
need
to
curtail
potentially
violent
conduct
“obligation” incumbent upon the operators of the FCCC.
is
an
Washington
v. Harper, 494 U.S. 210, 225 (1990) (stressing that the state has
not only an interest, but an obligation, to combat any danger posed
by a person to himself or others, especially in an environment,
which “by definition is made up of persons with a demonstrated
proclivity for antisocial criminal, and often violent, conduct.”
(internal quotations and citations omitted)).
Consequently, staff
at the FCCC are tasked with the arduous responsibility of rendering
treatment consistent with the goals of the SVP Act while
the
safety
of
not
only
themselves
and
other
ensuring
administrative
personnel, but of all residents who are confined at the FCCC.
The
Supreme Court has recognized that the “interest in institutional
security” and “internal security” is “paramount.”
Hudson v.
Palmer, 468 U.S. 517, 528 (1984).
The Eleventh Circuit recognizes that the Fourteenth Amendment
protects pretrial detainees from the use of excessive force;
however,
because
the
Eighth
Amendment
standard
is
the
same,
“decisional law involving prison inmates applies equally to cases
involving arrestees or pretrial detainees.”
85 F.2d 1480, 1490 (11th Cir. 1996).
Cottrell v. Caldwell,
See also, Smith v. Vavoulis,
373 F. App'x 965, 966 (11th Cir. 2010); Williams v. Scott, No. 10-
-15-
12075. 2011 WL 2672534 *2 (July 8, 2011)(applying Cottrell in case
involving FCCC resident alleging excessive sue of force).6
Under the Eighth Amendment, to establish an excessive use of
force
claim,
a
plaintiff
must
satisfy
an
“objective”
and
“subjective” prong. Smith, 373 F. App'x at 966 (citing Campbell v.
Sikes,
169
F.3d
1353,
1374
(11th
Cir.
1999).
To
meet
the
“objective” prong, the amount of force must be more than de
minimis, provided that the type of force is not of the kind that is
“repugnant to the conscience of mankind.” Hudson v. MacMillan, 503
U.S. 1, 10 (1992). To fulfill the “subjective” prong the plaintiff
must
demonstrate
that
the
force
was
applied
sadistically for the purpose of causing harm.
at
966.
The
evaluating
court
whether
examines
the
force
the
was
maliciously
and
Smith, 373 F. App'x
following
applied
five
factors
maliciously
in
and
sadistically:
(1) the extent of injury; (2) the need for application of
force; (3) the relationship between that need and the
amount of force used; (4) any efforts made to temper the
severity of a forceful response; and (5) the extent of
the threat to the safety of staff and inmates, as
6
But see Enriquez v. Kearney, 694 F. Supp. 2d 1282, 1291-1292
(S.D. Fla. 2010)(recognizing that the Eighth Amendment's “malicious
or sadistic” intent is at odds with the Fourteenth Amendment's
punishment benchmark and evaluating claim under the “revised” test
adopted in Telfair v. Gilbert, 868 F. Supp. 1396, 1404 (S.D. Ga.
1994), which requires a lesser showing of intent than that set
forth by the Eighth Amendment. Namely, whether there is direct
evidence that the use of force was intended to punish the detainee.
If not, (1) whether a legitimate use of force is evident from the
circumstances, and (2) if so, whether the force was necessary to
further that interest. Telfair at 1412.).
-16-
reasonably perceived by the responsible officials on the
basis of facts known to them.
Id.
D. Application of Law to Facts
Based upon a review of the record, the Court finds that
Plaintiff cannot demonstrate either prong to sustain his burden of
showing that Defendant Ellis violated his Fourteenth Amendment
rights by applying an excessive use of force.
Here, the video
reveals that the entire series of events was recorded, albeit
without sound, by at least two different closed-circuit cameras.
“Where the video obviously contradicts Plaintiff's version of he
facts,
[the
Court]
Plaintiff's account.”
accepts
the
video's
depiction
instead
of
Pourmoghani-Esfahani v. Gee, 625 F.3d 1313,
1315 (11th Cir. 2010)(citations omitted).
Nothing but plaintiff’s
conclusory, self-serving statements indicates that the video is not
accurate, and this is insufficient to create a material issue of
disputed fact.
Here, the evidence reveals Defendant Ellis applied at most, de
minimis force, and only after Plaintiff's actions were received by
officials as presenting a threat to the order and security in the
infirmary.
Defendant Ellis placed his right hand on Plaintiff's
right arm in the hallway in an attempt to stop Plaintiff from
further retreating from the infirmary ward.
Ellis then moved
Plaintiff's arm to behind his back to gain control of Plaintiff
because Plaintiff attempted to break loose from Ellis' hold.
-17-
Although, Ellis turned Plaintiff toward the wall, at no time did
Ellis bang Plaintiff's head off the wall as alleged by Plaintiff.
Thus, Plaintiff cannot meet the objective prong.
Even assuming arguendo that Plaintiff can objectively show
that Defendant Ellis applied more than a de minimis use of force,
the evidence clearly and unequivocally demonstrates that Plaintiff
cannot overcome the hurdles erected by the subjective prong.
Plaintiff alleges that he sustained a torn ligament, but fails to
introduce any evidence that his injury was related to Ellis' use of
force, as opposed to Plaintiff's hyper-extension of his arm well
behind his head to slam the manilla folder onto the table, as well
as his pounding on the table.
Further, Nurse Vanhise-Fowles had
advised Plaintiff and Defendant Ellis that Plaintiff was not
permitted
to
leave
the
infirmary.
Defendant
Ellis
ordered
Plaintiff, consistent with the directive from medical, to remain in
the infirmary.
Plaintiff disregarded both the medical order and
Ellis' order and was leaving the medical ward without permission.
Thus, Ellis was required to use force to stop Plaintiff from
leaving the area of the infirmary.
The type of force used by Defendant Ellis was limited to the
most basic of physical force - - Ellis' placement of his hands on
Plaintiff's back, right arm and right shoulder.
Significantly,
Defendant Ellis did not use any type of weapon or apply chemical
agents of any kind.
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The video, as well as Nurse Vanhise-Fowles and TST Malo's
affidavits attest to the fact that Defendant Ellis first attempted
to talk and counsel Plaintiff.
Plaintiff, however, exhibited
hostile behavior and his demeanor alarmed staff.
Plaintiff's
behavior created a security risk within the infirmary, as well in
the hallway, therefore justifying Defendant Ellis' use of force to
quell Plaintiff's potential threat to himself and others.
Plaintiff argues that he had a right to refuse to stay in the
infirmary.
See generally Reply.
Plaintiff attaches copies of the
FCCC's “Refusal of Health Care Services Affidavit.”
Doc. #38-3.
FCCC officials not only have the authority, but are charged by law
with an affirmative constitutional duty to provide proper and
necessary medical treatment to a resident with a serious medical
need.
Estelle v. Gamble, 429 U.S. 97 (1976).
duty to
provide
individual’s
medical
liberty
treatment
interest
in
arguably
rejecting
This affirmative
must
yield
unwanted
to
an
medical
treatment. Cruzan by Cruzan v. Director, Missouri Dep’t of Health,
497 U.S. 261, 278 (1990).
Plaintiff in the instant Complaint,
however, does not assert that his right to refuse medical treatment
was violated. See generally Complaint. Further, Plaintiff submits
only a blank refusal of consent form and does not allege, let alone
demonstrate, that he executed a refusal of consent form.
In any
event, the right to refuse medical treatment does not translate
into a right to become belligerent, verbally hostile, and exhibit
an aggressive demeanor.
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Consequently, based upon the record before the Court and the
applicable law, the Court finds that Defendant Ellis is entitled to
summary judgment as a matter of law.
ACCORDINGLY, it is hereby
ORDERED:
1.
Defendant Ellis’ Motion for Summary Judgement (Doc. #14)
is GRANTED.
2.
The Clerk of Court shall enter judgment accordingly,
terminate any pending motions and deadlines, and close this file.
DONE AND ORDERED at Fort Myers, Florida, on this
of September, 2011.
SA: hmk
Copies: All Parties of Record
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21st
day
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