Perez v. Sawyer et al

Filing 28

OPINION AND ORDER granting 24 Motion for summary judgment. The Clerk shall enter judgment accordingly in favor of defendant and close the case. Signed by Judge John E. Steele on 6/29/2016. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
WILFREDO PEREZ,
Plaintiff,
v.

Case No: 2:14-cv-558-FtM-29CM

WICKER, Officer, sued in his
individual capacities,
Defendant.
OPINION AND ORDER
This matter comes before the Court upon review of Defendant’s
Motion for Summary Judgment (Doc. #24) filed on October 5, 2015.
Despite being directed by the Court (Doc. #27), plaintiff did not
file a response in opposition.

(See docket.)

Therefore, this

matter is ripe for review.
I.
Plaintiff Wilfredo Perez, initiated this action by filing a
complaint pursuant to 42 U.S.C. § 1983 (Doc. #1) against defendant
Wicker in his individual capacity.

Plaintiff is a resident at the

Florida Civil Commitment Center (“FCCC”) in Arcadia, Florida.

The

Amended Complaint alleges a Fourteenth Amendment claim stemming
from

defendant’s

use

of

excessive

force.

(Doc.

#8.)

Specifically, plaintiff alleges defendant Wicker used excessive
force when he slammed plaintiff to the ground for no reason.
According to the Amended Complaint, on May 8, 2014, defendant

Wicker escorted plaintiff from his cell to Dr. Michael’s office to
discuss certain medication.

(Id. at p. 3.)

in marshal restraints during the escort.

Plaintiff was placed

(Id.)

Plaintiff spoke

with Dr. Michael and when he walked out of Dr. Michael’s office
for “reasons unknown to plaintiff” Officer Wicker body slammed
plaintiff to the floor.

(Id.)

Plaintiff suffered extreme pain

and suffering in his hip and back areas.

(Id.)

Plaintiff asserts

he “did not provoke, encourage, and/or verbally or physically
resist being escorted by Officer Wicker.”

(Id.)

Defendant asserts he is entitled to summary judgment because
the use of force was necessary under the circumstances and there
is no evidence plaintiff was injured as a result.

(Doc. #24.)

In

support of his motion for summary judgment, defendant submits the
following exhibits: (1) Affidavit of Dennis McGee (Doc. #24-1, pp.
1-2); (2) Plaintiff’s medical records relating to the incident
(Doc. #24-1 pp. 2-4); (3) Affidavit of Scott Wicker (Doc. #24-2);
and (4) Video footage of the incident (Doc. #25).

Plaintiff did

not file a response opposing defendant’s motion.
II.
A.

Summary Judgment Standard

Summary

judgment

is

appropriate

only

when

the

Court

is

satisfied that “there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of
law.”

Fed. R. Civ. P. 56(a).

“An issue of fact is ‘genuine’ if

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the record taken as a whole could lead a rational trier of fact to
find for the nonmoving party.”

Baby Buddies, Inc. v. Toys “R” Us,

Inc., 611 F.3d 1308, 1314 (11th Cir. 2010).

A fact is “material”

if it may affect the outcome of the suit under governing law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

“A

court must decide ‘whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so
one-sided that one party must prevail as a matter of law.’”
Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256, 1260 (11th
Cir. 2004) (citing Anderson, 477 U.S. at 251).
In ruling on a motion for summary judgment, the Court views
all evidence and draws all reasonable inferences in favor of the
non-moving party.

Scott v. Harris, 550 U.S. 372, 380 (2007); Tana

v. Dantanna’s, 611 F.3d 767, 772 (11th Cir. 2010).

However, “if

reasonable minds might differ on the inferences arising from
undisputed facts, then the court should deny summary judgment.”
St. Charles Foods, Inc. v. America’s Favorite Chicken Co., 198
F.3d 815, 819 (11th Cir. 1999) (quoting Warrior Tombigbee Transp.
Co.

v.

M/V

Nan

Fung,

695

F.2d

1294,

1296-97

(11th

Cir.

1983)(finding summary judgment “may be inappropriate where the
parties agree on the basic facts, but disagree about the factual
inferences that should be drawn from these facts”)).

“If a

reasonable fact finder evaluating the evidence could draw more
than one inference from the facts, and if that inference introduces

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a genuine issue of material fact, then the court should not grant
summary judgment.”

Allen v. Bd. of Pub. Educ., 495 F.3d 1306,

1315 (11th Cir. 2007).
B.

42 U.S.C. Section 1983

To state a claim under 42 U.S.C. § 1983, a plaintiff must
allege: (1) defendants deprived him of a right secured under the
United States Constitution or federal law, and (2) such deprivation
occurred under color of state law.

Arrington v. Cobb County, 139

F.3d 865, 872 (11th Cir. 1998); U.S. Steel, LLC v. Tieco, Inc.,
261 F.3d 1275, 1288 (11th Cir. 2001).

In addition, a plaintiff

must allege and establish an affirmative causal connection between
the

defendant’s

conduct

and

the

constitutional

deprivation.

Marsh, 268 F.3d at 1059; Swint v. City of Wadley, 51 F.3d 988 (11th
Cir. 1995); Tittle v. Jefferson County Comm’n, 10 F.3d 1535, 1541
n.1 (11th Cir. 1994).
C.

Civil detainees at the FCCC are not prisoners

Plaintiff is civilly committed, 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. 307, 319 (1982).

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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.

Id. at 321–322;

Dolihite v. Maughon, 74 F.3d 1027, 1041 (11th Cir. 1996) (holding
that

“persons

entitled

to

subjected
more

to

involuntary

considerate

civil

treatment

and

commitment
conditions

are
of

confinement than criminals whose conditions of confinement are
designed to punish.”)(quoting Youngberg, 457 U.S. at 322 (internal
quotation omitted)); see also Lavender v. Kearney, 206 F. App’x
860, 863 (11th Cir. 2006).
defining

the

contours

of

Nonetheless, case law relevant to
constitutional

rights

afforded

to

prisoners is relevant in evaluating a claim brought by a person
who is involuntarily civilly committed.

Id.

This, however, does not mean that civil detainees are free to
live within the FCCC without any restrictions or limitations.

The

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,

institution,

neither

the

or

orders

fact

of

given

their

by

staff

existence

at

nor

the
their

imposition gives rise to a constitutional violation because such
does

not

constitute

punishment.

Indeed,

the

Supreme

observed this point, opining in pertinent part, as follows:

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Court

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.”
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).
Consequently,

staff

at

the

FCCC

are

tasked

with

the

arduous

responsibility of rendering treatment consistent with the goals of
the SVP Act while ensuring the safety of not only themselves and
other administrative personnel, but of all residents who are
confined at the FCCC.

The Supreme Court has recognized that the

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“interest in institutional security” and “internal security” is
paramount.
D.

Hudson v. Palmer, 468 U.S. 517, 528 (1984).
Excessive Use of Force

The analysis under the Fourteenth Amendment is the same for
both

pretrial

detainees

and

those

civilly

committed.

See

Youngberg v. Romeo, 457 U.S. 307, 321 (1982) (applying Bell v.
Wolfish to a claim by a civilly committed plaintiff); see also
Davis v. Wessel, 792 F.3d 793, 800 (7th Cir. 2015).

Accordingly,

the Supreme Court’s recent decision in Kingsley v. Hendrickson,
135 S. Ct. 2466 (2015), provides the applicable standard for claims
of excessive force against a civilly committed detainee.
Under Kingsley, the Due Process Clause of the Fourteenth
Amendment
purposely

requires
or

unreasonable.”

only

that

knowingly
Id.

at

plaintiff

show

“that
was

used

against

him

2473.

The

inquiry

the

force

objectively

into

objective

unreasonableness is not mechanical; it depends on the facts and
circumstances in each case.

Id. (citations omitted).

“A court

must make this determination from the perspective of a reasonable
officer on the scene, including what the officer knew at the time,
not with the 20/20 vision of hindsight.”

Id.

The Supreme Court

has provided a non-exhaustive list of factors to consider when
determining reasonableness:
the relationship between the need for the use
of force and the amount of force used; the
extent of the plaintiff's injury; any effort

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made by the officer to temper or to limit the
amount of force; the severity of the security
problem at issue; the threat reasonably
perceived by the officer; and whether the
plaintiff was actively resisting.
Id.
A court must also consider “‘legitimate interests that stem
from [the government’s] need to manage the facility in which the
individual is detained,’ appropriately deferring to ‘policies and
practices that in the judgment’ of jail officials ‘are needed to
preserve

internal

order

institutional security.’”

and

discipline

and

to

maintain

Id. (quoting Bell, 441 U.S. at 540).
IV.

A.

Material Facts

The undisputed facts show that on May 8, 2014, plaintiff was
escorted to FCCC psychiatrist Dr. Michael’s office by security
including defendant Wicker.

(Doc. #24-1, ¶ 4; Doc. #24-2, ¶ 4.)

Registered Nurse Dennis McGee was present at plaintiff’s meeting
with Dr. Michael.

(Id.)

Due to plaintiff’s known history of

violence in the facility, he was considered a high risk resident
and presented to Dr. Michael in waist cuffs.

(Id.)

Plaintiff was

on one-on-one observation due to self-injurious behavior.
Plaintiff

requested

that

security

stand

outside

Michael’s door for privacy and Dr. Michael agreed.
¶ 5; Doc. #24-2, ¶ 5.)
leaving the door ajar.

(Id.)
of

Dr.

(Doc. #24-1,

Security stood outside Dr. Michael’s office
(Id.)

Although plaintiff was calm at the

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beginning of Dr. Michael’s interview, plaintiff’s behavior rapidly
escalated.

(Doc. #24-1, ¶ 6.)

Plaintiff became angry, verbally

abusive, and physically threatening.

(Id.)

Plaintiff got out of

his seat and leaned over the desk towards Dr. Michael and said in
a loud threatening manner, “I want to kill somebody.”

(Id.)

At

that point, security intervened, the interview was terminated, and
Wicker escorted plaintiff from Dr. Michael’s office.

(Doc. #24-

1, ¶ 7; Doc. #24-2, ¶ 6.)
While

Wicker

was

escorting

plaintiff

down

the

hallway,

plaintiff turned towards Wicker and Wicker directed him forward.
(Doc. #24-2, ¶ 7; Doc. #25.)

Then, plaintiff hit Wicker with his

elbow and turned towards him again.
plaintiff to the ground.
Wicker.

(Id.)

(Id.)

(Id.)

Wicker then took

Another officer came to assist

Wicker and the other officer then helped plaintiff

off the ground and continued escorting him away from Dr. Michael’s
office.

(Id.)

Wicker has personally witnessed plaintiff attack and verbally
abuse staff at FCCC prior to the incident.

(Doc. #24-2, ¶ 4.)

Wicker was personally threatened by plaintiff in the past on
multiple occasions.

(Id.)

Plaintiff is known as one of the most

violent and unpredictable residents at FCCCC.

(Id.)

Plaintiff was seen by Nurse McGee after the incident in the
hallway with Wicker.

(Doc. #24-1, ¶ 8.)

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At no time did plaintiff

claim he was injured from the incident with Wicker or appear
injured in any way.
B.

(Id.; Doc. #24-2, ¶ 7.)

Application of law to facts

Whether Wicker’s conduct was objectively unreasonable depends
on what plaintiff was doing at the time, and whether the force
used against plaintiff, judged from Wicker’s perspective, was
excessive in relation to a legitimate governmental objective, such
as maintaining order.

Kingsley, 135 S. Ct. at 2473–74.

The Court

finds the facts alleged by plaintiff are not sufficient to show
that the force Wicker used against plaintiff was objectively
unreasonable so as to violate plaintiff’s constitutional rights.
Id.

Viewing the facts in the light most favorable to plaintiff,

the Court concludes that Wicker’s use of force was reasonable under
the circumstances.
The record shows that plaintiff elbowed Wicker in the stomach
which led Wicker to use enough force to push plaintiff onto the
ground and hold him there until another officer was present.

(Doc.

#25.)

Plaintiff was then helped up by both officers.

(Id.)

Plaintiff showed no signs of injury after the incident.

(Doc.

#24-1, ¶ 9.)

Plaintiff has a history of and propensity for

violence and is considered a high risk resident at the FCCC.
#24-1, ¶. 4; Doc. #24-2, ¶ 4.)

(Doc.

The undisputed record shows that

Wicker was aware of plaintiff’s prior history of violence and
defendant believed plaintiff’s conduct posed a security risk.

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(Doc. #24-2, ¶¶ 4, 7.)

Petitioner’s aggressive behavior as shown

by the video footage makes it clear that plaintiff was the initial
aggressor and Wicker acted reasonably under the circumstances.
(See Doc. #25.)

After reviewing all of the evidence in plaintiff’s

favor, the Court concludes that Wicker used reasonable force in a
good-faith effort to curtail plaintiff’s violent conduct.
Furthermore, plaintiff does not allege more than a de minims
injury.

Plaintiff does not allege that his injuries required

medical attention or that he even requested medical care, and there
is no evidence in the record of plaintiff receiving medical care
for his injuries.

The Eleventh Circuit has repeatedly held that

a push or shove that causes pain and necessitates no, or merely
minor, medical treatment is not a constitutional violation, even
where

the

necessary.

prisoner

was

restrained

and

no

further

force

was

See, e.g., Jones v. City of Dothan, 121 F.3d 1456,

1460–61 (11th Cir. 1997); Post v. City of Fort Lauderdale, 7 F.3d
1552, 1556 (11th Cir. 1993), modified, 14 F.3d 583 (11th Cir.
1994).

Furthermore, a conclusory allegation that the prisoner

suffered serious injury should be discounted, and the absence of
further evidence of injury justifies the conclusion that the use
of force on the prisoner was minimal.

Brown v. Smith, 813 F.2d

1187 (11th Cir. 1987); Bennett v. Parker, 898 F.2d 1530, 1533 (11th
Cir. 1990).

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Drawing all inferences in favor of plaintiff, the Court finds
that

Wicker

acted

reasonably

under

the

circumstances.

Accordingly, the Court finds defendant is entitled to summary
judgment.
ACCORDINGLY, it is hereby
ORDERED:
Defendant’s
GRANTED.

Motion

for

Summary

Judgment

(Doc.

#24)

is

The Clerk of Court shall terminate any pending motions,

enter judgment accordingly in favor of defendant, and close this
case.
DONE and ORDERED in Fort Myers, Florida on this
of June, 2016.

SA: ftmp-2
Copies: All Parties of Record

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29th

day