Guzman v. Scott et al
Filing
31
OPINION AND ORDER denying 21 defendants' Motion for Summary Judgment; dismissing Count III. See Opinion and Order for details. Signed by Judge John E. Steele on 1/23/2017. (AMB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
VICTOR
GUZMAN,
resident,
Florida
Plaintiff,
v.
Case No: 2:15-cv-192-FtM-29CM
MIKE
SCOTT,
Lee
County
Sheriff, in his individual
and
official
capacity,
GUSTAVO
VALLEJO,
in
his
individual capacity, Florida
resident, MIKE TAMULIONIS,
in his individual capacity,
and RICHARD RUSSO, in his
individual capacity,
Defendants.
OPINION AND ORDER
This matter comes before the Court on defendants Mike Scott,
Mike Tamulionis, and Gustavo Vallejo’s Motion for Final Summary
Judgment (Doc. #21) and supporting documentation (Doc. #22) filed
on November 3 and 4, 2016.
on November 17, 2016.
Plaintiff filed a Response (Doc. #27)
For the reasons set forth below, the motion
is denied, but Count III has been withdrawn and is therefore
dismissed.
I.
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
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).
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. Am.’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 (11th Cir. 1983) (finding
summary judgment “may be inappropriate even 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 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).
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II.
On April 12, 2011, between 8:30 and 9:00 p.m., Officers
Tamulionis, Vallejo, and Russo 1 were on duty assisting with the
Fugitives Warrant Unit of the Lee County Sheriff’s Office.
The
officers were in an unmarked police vehicle searching for an
individual wanted in connection with a rape and kidnapping.
The
victim of the crime was with the officers in order to facilitate
the identification and apprehension of the suspect.
The victim’s
husband, Oscar Sebastian, was the target of the search.
To assist in their search, the officers utilized technology
that,
based
off
of
cell
phone
towers,
provided
a
“cone”
locations where Oscar Sebastian’s cell phone may be found.
of
The
cone led the officers to an area near North Riverside Drive and
West Terry Street in Bonita Springs, Florida.
As they approached
the area where the cell phone was potentially located, the officers
saw two or three Hispanic males standing outside of a residence on
North Riverside Drive.
One of these individuals was plaintiff,
Victor Guzman.
Because the victim only spoke Spanish, Officer Vallejo, who
speaks both English and Spanish, acted as a translator between the
other officers and the victim.
As the officers approached the men
1
Plaintiff’s Amended Complaint (Doc. #5) names Richard Russo
as a defendant, but it does not appear that Mr. Russo was ever
served with process or made an appearance in this matter.
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in the unmarked police vehicle, the victim became hysterical,
pointed at one of the Hispanic men, and stated “That’s him.
him.”
That’s
Once the victim had calmed and was able to speak, Officer
Vallejo asked the victim to describe the suspect so that the
officers could identify which one of the men she was referring to.
Officers Tamulionis and Russo exited the vehicle while Officer
Vallejo and the victim remained in the vehicle.
The officers took
plaintiff to the ground, where he was ultimately handcuffed.
The
factual versions of this takedown greatly diverge.
Plaintiff alleges that he was facing away from the officers’
vehicle, showing his friend Francisco some material that was
covered at Church earlier in the evening and giving him his
assignment.
Plaintiff did not see the officers or their unmarked
vehicle approach.
Francisco, who was facing towards the direction
of the officers, did not communicate the officers’ presence to
plaintiff.
Plaintiff
asserts
that,
without
announcing
their
presence, the officers hit plaintiff from behind and knocked him
to the ground.
Once on the ground, the officers beat plaintiff,
causing him to lose consciousness.
Plaintiff states that he did
not resist, flee, or otherwise attempt to evade the officers in
any way.
According to the officers, Officers Russo and Tamulionis
exited the vehicle and instructed plaintiff to get on the ground.
Plaintiff attempted to flee, getting approximately two feet away
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from officer Russo, when officers Russo and Tamulionis tackled
plaintiff to the ground.
The officers assert that they did not
punch plaintiff and only used as much force as was necessary under
the circumstances.
Guzman was handcuffed while on the ground.
All parties agree that the entire incident occurred within a very
short period of time.
It is undisputed that the officers stood Guzman up and faced
him toward the victim.
The victim indicated that Guzman was not
the person they were seeking.
Plaintiff states that he then informed the officers that he
was badly hurt and in need of medical attention.
In response, the
officers said that he was fine and should just take some aspirin.
The officers assert, on the other hand, that they asked plaintiff
if he needed medical attention and plaintiff declined, stating
that he was fine.
plaintiff.
The officers then left the area, leaving
Plaintiff asserts that as a result of the incident he
had bruising and knots on his body and head, has vision loss, and
suffers from frequent headaches.
Juan Garcia, a friend of plaintiff’s who lives near the scene
of the incident, arrived after the police left the area.
Upon
seeing
that
plaintiff,
Garcia
called
plaintiff go to the hospital.
was
transported
treatment.
to
North
an
ambulance,
insisting
The ambulance arrived and plaintiff
Collier
Hospital
where
he
obtained
Plaintiff complained that he was experiencing pain
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throughout
documents
his
entire
relating
to
body.
head
orbital floor fractures.
Plaintiff
injuries,
obtained
corneal
discharge
abrasions,
and
The hospital physician wrote plaintiff
a prescription for amoxicillin.
Plaintiff followed up with Dr. Saurabh N. Patel, M.D., an
ophthalmologist
who
had
performed
retinal
detachment
repair
surgery on plaintiff in 2009 following a 2007 work-related injury. 2
On April 13, 2011, the day after the incident with the officers,
plaintiff returned to see Dr. Patel complaining of left eye pain
and vision loss.
Plaintiff reported that he had been hit on the
left side of his eye during the incident the night before.
Dr.
Patel examined plaintiff and found that plaintiff could count
fingers at three feet and that a cataract was developing in his
left eye.
Dr. Patel did not notice any physical indication of a
recent injury, such as a laceration or ecchymosis (back and blue
around the eye).
Because of plaintiff’s indication that he had experienced
blunt trauma to his head the evening before, Dr. Patel requested
a copy of the CAT scan report that was performed at the hospital.
The second page of the facial CAT scan report concluded “no major
2
After plaintiff’s retinal detachment surgery, plaintiff
continued to see Dr. Patel for follow-up appointments through the
remainder of 2009 and into 2010. Prior to being seen on April 13,
2011, the last time plaintiff had contacted Dr. Patel was on
November 16, 2010 when plaintiff called Dr. Patel’s office with
concerns that his vision was not improving.
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acute fractures, old left medial orbital wall deformity,” with
which Dr. Patel concurred.
Dr. Patel also received a copy of the
CAT scan of the brain without contrast which did not indicate the
existence of a recent traumatic injury.
Dr. Patel testified
during his deposition that cataracts often develop in conjunction
with retinal detachment surgery and plaintiff’s cataract that was
causing him vision loss was not the result of a recent trauma and,
instead, had been slowly developing over time following the retinal
detachment surgery.
III.
Plaintiff’s
Amended
Complaint
(Doc.
#5),
the
operative
pleading before the Court, asserts the following claims:
(1) a
42 U.S.C. § 1983 claim against Mike Tamulionis, Richard Russo, and
Gustavo Vallejo for the use of Excessive Force; (2) a 42 U.S.C. §
1983 claim against Mike Tamulionis, Richard Russo, and Gustavo
Vallejo for Failure to Intervene; (3) a 42 U.S.C. § 1983 claim
against the Lee County Sheriff, Mike Scott for having a policy of
excessive force; and (4) a state law claim against Lee County
Sheriff, Mike Scott, for Battery based on the conduct of his three
officers.
(Doc. # 5.)
A. Count I: 42 U.S.C. § 1983 Excessive Force Claim
Count I asserts a claim under 42 U.S.C. § 1983 for excessive
force against Mike Tamulionis, Richard Russo, and Gustavo Velejo.
(Doc. #5, ¶¶ 18-26.)
Defendants move for summary judgment as to
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Count I on the basis that “there are no disputed material facts
that Mr. Guzman did not sustain serious injuries as a result of
his arrest” (Doc. #21, p. 8), and therefore “[i]n the absence of
any serious injuries to Mr. Guzman resulting from this arrest,
there can only be, at best, a de minimis injury that does not rise
to a constitutional violation.”
(citation omitted).
(Id. at 9) (emphasis in original)
Plaintiff responds that “gratuitous force or
unreasonable force, even without injury, is actionable.”
(Doc.
#27, p. 4.)
The
relevant
excessive
force
principles
in
the
Fourth
to
use
Amendment context are well-established:
(1)
The
“reasonable”
individual.
(2)
is
Fourth
amount
Amendment
of
force
allows
in
officers
detaining
or
arresting
a
an
Graham v. Connor, 490 U.S. 386, 396 (1989).
The determination of whether a particular use of force
“reasonable”
requires
careful
attention
to
the
facts
and
circumstances of each particular case, “including the severity of
the crime at issue, whether the suspect poses an immediate threat
to the safety of the officers or others, and whether he is actively
resisting
arrest
or
attempting
to
evade
arrest
by
flight.”
Priester v. City of Rivera Beach, 208 F.3d 919, 924 (11th Cir.
2000) (quoting Graham, 490 U.S. at 396).
(3)
The right to arrest or detain necessarily carries with
it the right to use some degree of physical coercion or threat to
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effect
the
detention
or
arrest.
Graham,
490
U.S.
at
396;
Durruthy v. Pastor, 351 F.3d 1080, 1094 (11th Cir. 2003) (“[S]ome
use of force by a police officer when making a custodial arrest is
necessary and altogether lawful, regardless of the severity of the
alleged offense.”).
This amount of force is often referred to as
de minimis.
(4)
The use of de minimis force, without more, will not
support a claim for excessive force in violation of the Fourth
Amendment.
Myers v. Bowman, 713 F.3d 1319, 1327 (11th Cir. 2013);
Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000) (“[W]e
conclude this Circuit has established the principle that the
application of de minimis force, without more, will not support a
claim for excessive force in violation of the Fourth Amendment.”).
De minimis force, even when it is “unnecessary,” is “not unlawful.”
Durruthy, 351 F.3d at 1094.
(5)
Even de minimis force, however, will violate the Fourth
Amendment if the officer is not entitled to arrest or detain the
suspect.
Yessin v. City of Tampa, 613 F. App’x 906, 908 (11th
Cir. 2015); Reese v. Herbert, 527 F.3d 1253, 1272 (11th Cir. 2008).
(6)
The principle which allows de minimis force does not
immunize officers who use excessive and gratuitous force after a
suspect has been subdued, is not resisting, and poses no threat.
Saunders v. Duke, 766 F.3d 1262, 1265, 1269-70 (11th Cir. 2014)
(denying qualified immunity where officers allegedly slammed an
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already-handcuffed
arrestee's
head
against
the
pavement
with
extreme force); Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th
Cir. 2008) (concluding that an officer used excessive force when
he punched an individual in the stomach while the individual was
handcuffed and not struggling or resisting); Lee v. Ferraro, 284
F.3d 1188, 1198 (11th Cir. 2002) (finding excessive force where
officers allegedly slammed plaintiff’s head against the trunk
after being handcuffed); Slicker v. Jackson, 215 F.3d 1225, 1233
(11th Cir. 2000) (holding that a plaintiff could seek nominal
damages based on pain and suffering where officers kicked and beat
the handcuffed plaintiff).
(7)
A suspect who is gratuitously beaten in violation of the
Fourth Amendment does not lose his ability to pursue an excessive
force claim even if there is no visible, or serious, or compensable
injury.
Saunders, 766 F.3d at 1269–70 (“To conclude . . . that
the absence of some arbitrary quantity of injury requires automatic
dismissal of an excessive force claim improperly bypasses [the]
core
[judicial]
inquiry,
which
is
the
nature
of
the
force.”
(alterations in original) (quoting Wilkins v. Gaddy, 559 U.S. 34,
38–39 (2010) and relying on Eighth Amendment analysis therein));
Slicker, 215 F.3d at 1231–32 (holding that a plaintiff could seek
nominal damages based on pain and suffering); Lee, 284 F.3d at
1200
(“Just
as
ordinary,
reasonable
force
‘does
not
become
excessive force when the force aggravates (however severely) a
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pre-existing condition the extent of which was unknown to the
officer at the time,’ objectively unreasonable force does not
become reasonable simply because the fortuity of the circumstances
protected the plaintiff from suffering more severe physical harm.”
(quoting Rodriguez v. Farrell, 280 F.3d 1340, 1352-53 (11th Cir.
2002)).
Depending on whose version of the detention event is credited,
a reasonable jury could find excessive force.
Assuming that there
is no credible evidence of more than a de minimis injury, plaintiff
would still have a viable excessive force claim.
Since the
material facts are disputed and the legal principles would not
support denial of the claim when those facts are viewed in the
light most favorable to the plaintiff, defendants’ motion is
denied.
Accordingly, defendants’ Motion for Summary Judgment as
to Count I is denied.
B. Count II:
42 U.S.C. § 1983 Failure to Intervene Claim
Count II asserts a claim under 42 U.S.C. § 1983 for failure
to intervene against Mike Tamulionis, Richard Russo, and Gustavo
Vallejo.
(Doc.
#5,
¶¶
27-36.)
Defendants
assert
they
are
entitled to summary judgment as to this claim because it is
premised on the excessive force claim, to which defendants are
entitled to summary judgment.
(Doc. #21, pp. 9-10.)
Since
defendants are not entitled to summary judgment on the excessive
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force claim, their argument as to Count II must fail.
Accordingly,
defendants’ Motion for Summary Judgment as to Count II is denied.
C. Count III:
42 U.S.C. § 1983 Claim Against Lee County
Sheriff Mike Scott
Count III asserts a claim of supervisory liability under 42
U.S.C. § 1983 against Lee County Sheriff Mike Scott.
(Doc. #5,
¶¶ 37-46.)
Plaintiff has withdrawn Count III in his Response to
defendants’
Motion
for
Summary
Judgment.
(Doc.
#27,
p.
7.)
Accordingly, Count III is dismissed and this aspect of the motion
is denied as moot.
D. Count IV:
State Law Claim for Battery
Count IV asserts a state law claim for battery against Sheriff
Mike Scott based upon vicarious liability for the conduct of his
deputies.
(Doc. #5, ¶¶ 47-52.)
Defendants assert that they are
entitled to summary judgment as to Count IV because plaintiff did
not sustain injuries and therefore he cannot establish that the
amount of force used was excessive.
(Doc. #21, p. 13.)
“Pursuant to Florida law, police officers are entitled to a
presumption of good faith in regard to the use of force applied
during a lawful arrest, and officers are only liable for damage
where the force used is ‘clearly excessive.’” Davis v. Williams,
451 F.3d 759, 768 (11th Cir. 2006) (quoting City of Miami v.
Sanders, 672 So. 2d 46, 47 (Fla. 3d DCA 1996)).
Therefore, “[i]f
an officer uses excessive force, the ‘ordinarily protected use of
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force . . . is transformed into a battery.’” Id. (omission in
original) (quoting Sanders, 672 So. 2d at 47).
Because the Court rejects the defendants’ argument that de
minimis injury automatically means that the use of force was de
minimis, the Court also denies defendants’ Motion for Summary
Judgment as to Count IV.
Accordingly, it is hereby
ORDERED:
Defendants' Motion for Final Summary Judgment (Doc. #21) is
DENIED.
Count III is withdrawn by plaintiff and is therefore
DISMISSED.
DONE and ORDERED at Fort Myers, Florida, this __23rd__ day of
January, 2017.
Copies:
Counsel of Record
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