Dutton v. Reynolds et al

Filing 93

ORDER granting 66 Motion for summary judgment with respect to all claims against Defendants, except for the Fourth Amendment claim of failure to intervene against Defendant G. Osilka; the Court will withhold directing the entry of judgment to that effect pending adjudication of the action as a whole. Signed by Judge Brian J. Davis on 9/11/2014. (LDO)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
FREDERICK CHARLES DUTTON, JR.,
Plaintiff,
v.

Case No. 3:12-cv-427-J-39JRK

J. J. REYNOLDS, et al.,
Defendants.

ORDER
I.

Status

Plaintiff Frederick Charles Dutton, Jr., an inmate of the
Florida Department of Corrections, is proceeding pro se on a Civil
Rights Complaint (Complaint) (Doc. 1).1

A Motion by Defendants [H.

Baker, IV,2 C. C. Barnhardt, M. T. Bogert, K. W. Bowen, E. Collier,
G. B. Futch, L. J. Gayle, T. C. Haire, B. D. Langley, C. A. Moore,
M. R. Mosley, G. M. Olivera, G. Osilka, M. T. Summers, R. E.
Vercruysse, J. D. Warren, M. A. Zona, D. T. Fallis, M. W. Moon, J.
C. Williams, and W. J. Woolery] for Final Summary Judgment (Motion

1

In this opinion, the Court references the document numbers
and page numbers assigned by the electronic filing system.
2

The Clerk shall correct the name on the docket of Defendant
H. Baker, VI, to H. Baker, IV. The Clerk shall also correct the
name on the docket of Defendant M. Borgert to M. Bogert.

for Summary Judgment) (Doc. 66) is before the Court,3 as well as
Defendant Officers' Notice of Filing Documents in Support of Motion
for Summary Judgment (Doc. 67).4

Plaintiff filed a Response &

Objections

Motion

to

Defendants'

Joint

for

Summary

Judgment

(Response) (Doc. 76) and Notice of Filing Documents in Response and
Objections to Defendants' Motion for Summary Judgment (Doc. 77) on
May 8, 2014.5

See Order (Doc. 10) and Summary Judgment Notice

(Doc. 68).

The Court allowed the filing of Defendants' Reply to

Plaintiff's

Response

to

Defendants'

Motion

for

Final

Summary

Judgment (Doc. 83), Defendant Officers' Notice of Filing Documents
in Support of Defendants' Reply (Doc. 84), and Plaintiff's Surreply
to Defendants' Reply (Surreply) (Doc. 91).

See Orders (Docs. 80 &

88).
II.

Complaint

In the Complaint, Plaintiff raises the following claims for
relief: (1) a Fourth Amendment claim of excessive force against
Defendants J. J. Reynolds, J. T. Merritt and M. Musser for using
physical force against him without need or provocation, and (2) a
Fourth Amendment claim against Defendants Sgt. A. A. Webb, Sgt. J.

3

Six Defendants have not joined this Motion for Summary
Judgment: J. J. Reynolds, J. Anderson, Sgt. A. A. Webb, M. Musser,
J. T. Merritt, and R. M. Silcox. Motion for Summary Judgment at 2
n.3.
4

The Court hereinafter refers to these documents as "Ex."
5

The Court hereinafter refers to these documents as
"Plaintiff's Exhibit."
- 2 -

D. Warren, Lt. E. Collier, Lt. L. Gayle, C. C. Barnhardt, M. A.
Zona, K. W. Bowen, C. Moore, J. C. Williams, Jr., H. Baker IV, W.
Woolery, M. Moon, B. Langley, G. B. Futch, D. Fallis, M. Bogert, J.
Anderson, R. M. Silcox, R. Vercruysse, G. M. Oliveras, G. Osilka,
M. T. Summers, T. C. Haire, and M. R. Mosley, for failing to
intervene

during

Reynolds',

Merritt's

unnecessary use of excessive force.
Plaintiff

seeks

Defendants,
Defendants'

compensatory

and,

a

Constitutional right."

The

following

Musser's

Complaint at 8.
punitive

judgment

of

Fourth

Plaintiff's

Id. at 11.

apparent

As relief,

damages

"[d]eclaratory

violation

individual capacity.

and

and

against

acknowledging

Amendment,

U.S.

Each Defendant is sued in his

Id. at 1.
factual

allegations

in

relevant to the claims against Defendants.

the

Complaint

are

During the incident

that took place in April 2008, Plaintiff was driving a truck in
Duval County, Florida, and his wife, Barbara Dutton was a passenger
in the truck.6

Complaint at 9.

Defendant Reynolds initiated a

stop based on Plaintiff's failure to comply with a stop sign.
Reynolds activated his emergency lights.

Id.

Id.

Plaintiff decided

not to yield to Reynold's order to stop the truck.

Id.

Plaintiff

proceeded to drive in an effort to evade and elude police.

Id.

During the chase, the police [Jacksonville Sheriff's Office (JSO),

6

Plaintiff is currently confined in Apalachee West Unit.
http://www.dc.state.fl.us/AppCommon.
- 3 -

See

Clay County Sheriff's Office, and the Florida Highway Patrol]
pursued Plaintiff.

Id.

The patrol cars and helicopter were

equipped with video surveillance equipment.

Id.

Approximately

twenty-five to thirty minutes into the chase, Plaintiff attempted
to enter a Jacksonville subdivision where his parents resided. Id.
Reynolds tapped Plaintiff's vehicle with his patrol car, causing
Plaintiff's truck to spin out of control into another vehicle. Id.
At this point, Plaintiff's truck was inoperable.

Id.

The

truck's airbag deployed, pinning Plaintiff in the driver's seat.
Id.

Plaintiff and his wife were uninjured.

Id.

Plaintiff did not

move. Id. Defendant Merritt opened the driver's door of the truck
and ordered K9 service dog Marshall to attack Plaintiff.
dog engaged Plaintiff's left forearm.

Id. at 10.

screamed

vehicle

and

he

was

pulled

from

the

Id.

The

Plaintiff

while

Merritt

maintained control of the K-9's leash and the K-9 remained engaged.
Id.

Merritt

ordered

Plaintiff

to

stop

resisting,

Plaintiff

complied, and Merritt used a tactical release to disengage the K-9.
Id.
Once outside of the truck, JSO deputies threw Plaintiff to the
ground and secured Plaintiff's hands with handcuffs behind his
back.

Id.

Plaintiff, face down on the road and handcuffed behind

his back, offered no resistance.

Id.

All twenty-seven Defendants

were present. Id. At this time, Defendants Reynolds, Merritt, and
Musser punched, kicked, and beat Plaintiff with their hands, feet,

- 4 -

and flashlights. Id. Defendant Reynolds grabbed Plaintiff's hair,
turned his face to the wreckage, and said: "You see what you done.
You killed him." Id. Reynolds repeatedly slammed Plaintiff's head
against the road.

Id.

For approximately ten minutes, Plaintiff

was beaten, and then he lost consciousness.

Id.

The remaining

Defendants observed the excessive use of force and failed to
intervene.

Id.

Thereafter, Jacksonville Fire and Rescue Emergency Medical
technicians arrived at the scene.

Id.

Unidentified individuals

handcuffed Plaintiff to a gurney and placed him in an ambulance.
Id. Defendant Musser acted as a police escort for Plaintiff's trip
to Shands Jacksonville Hospital.

Id.

While in the ambulance,

Plaintiff momentarily regained consciousness.

Id. at 11.

Musser

asked Plaintiff his name, but Plaintiff could not articulate the
information as he was dazed and confused.

Id.

Musser jabbed

Plaintiff in the ribs three separate times during the ambulance
ride.

Id.

hospital.

Plaintiff lost consciousness before arriving at the
Id.

The hospital admitted Plaintiff into the trauma

unit, where he was in a comatose state and placed on life support.
Id.
As a result of the beating, Plaintiff suffered from a coma; a
traumatic head injury causing permanent damage; severe bruising to
a kidney, resulting in the removal of the kidney; permanent spinal
injury (neck and back); and lacerations resulting in permanent

- 5 -

scarring.

Id.

Plaintiff remained comatose for approximately

seventy-two hours.

Id.

Plaintiff came out of the coma on April

22, 2008, and was transported to the Duval County Jail.

Id.

The

State of Florida charged Plaintiff with felony fleeing and eluding
(causing bodily injury to another).
III.

Id.

Summary of Arguments

In the Motion for Summary Judgment, Defendants make the
following arguments: they did not fail to intervene because they
were not present at the scene of the arrest; they did not intervene
because they did not participate in arresting Plaintiff and did not
have an opportunity to intervene even if Plaintiff's constitutional
rights were being violated by others; and they are entitled to
qualified immunity.

Motion for Summary Judgment at 6, 19-22.

Pursuant to Rule 56, Federal Rules of Civil Procedure, Defendants
request that summary judgment be granted in their favor. Id. at 1.
Plaintiff concedes that nine Defendants should be awarded summary
judgment and moves the Court to grant them summary judgment.
Response

at

2.

The

referenced

nine

Defendants

are:

C.

C.

Barnhardt, T. C. Haire, C. A. Moore, G. M. Oliveras, H. Baker, IV,
M. T. Summers, R. Vercruysse, G. B. Futch, and J.D. Warren.

Id.

Plaintiff contends that the remaining twelve Defendants seeking
summary judgment are not entitled to qualified immunity and there
are genuine issues of material fact that preclude summary judgment.
Id. at 20.

- 6 -

IV.

Standard of Review - Motion for Summary Judgment

Summary judgment is proper when "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); see also Crawford v.

Carroll, 529 F.3d 961, 964 (11th Cir. 2008) (citations omitted).
"The burden of demonstrating the satisfaction of this standard lies
with the movant," Branche v. Airtran Airways, Inc., 342 F.3d 1248,
1252-53 (11th Cir. 2003), cert. denied, Airtran Airways, Inc. v.
Branche, 540 U.S. 1182 (2004), who must present "depositions,
documents,

electronically

declarations,

stored

stipulations,

.

.

information,
.

affidavits

admissions,

or

interrogatory

answers, or other materials" to show that the facts cannot be
genuinely disputed,

Fed. R. Civ. P. 56(c)(1)(A).

An issue is

genuine when a reasonable jury could return a verdict for the
nonmovant.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50

(1986).
In addition, judgment should enter "against a party who fails
to make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that party
will bear the burden of proof at trial." Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).

"In such a situation, there can be 'no

genuine issue as to any material fact,' since a complete failure of
proof concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial."

- 7 -

Id. at 322-23.

"'When

a

moving

party

has

discharged

its

burden,

the

non-moving party must then go beyond the pleadings, and by its own
affidavits, or by depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is
a genuine issue for trial.'"

Allen v. Bd. of Pub. Educ. for Bibb

Cnty., 495 F.3d 1306, 1314 (11th Cir. 2007) (quoting Jeffery v.
Sarasota White Sox, Inc., 64 F.3d 590, 593-94 (11th Cir. 1995)).
In

ruling

"constru[e]

on

a

the

motion
facts

for
and

summary
draw[]

judgment,

all

a

reasonable

court

must

inferences

therefrom in the light most favorable to the non-moving party."
Centurion Air Cargo, Inc. v. United Parcel Serv. Co., 420 F.3d
1146, 1149 (11th Cir. 2005) (citing Cuesta v. Sch. Bd. of MiamiDade Cnty., 285 F.3d 962, 966 (11th Cir. 2002)).
V.

Fourth Amendment Violation

Plaintiff claims he was subjected to excessive physical force
incident to his arrest, without need or provocation, resulting in
a violation of the Fourth Amendment.

Complaint at 8.

He alleges

that these twelve Defendants failed to intervene to stop another
officer's use of excessive force, resulting in a Fourth Amendment
violation.

Id.

This claim is raised pursuant to 42 U.S.C. § 1983.

To prevail in a § 1983 action, Plaintiff must demonstrate:

"(1)

the act or omission deprived him of a right, privilege, or immunity
secured by the Constitution or laws of the United States; and (2)
the act or omission was done by a person acting under color of

- 8 -

law."

Smith v. Mercer, Nos. 12-14322, 13-13776, 2014 WL 3398353,

at *3 (11th Cir. July 14, 2014) (per curiam) (not selected for
publication in the Federal Reporter) (citing Marshall Cnty. Bd. of
Educ. v. Marshall Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir.
1993)).
More specifically, "[t]he Fourth Amendment guarantees '[t]he
right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures....' U.S.
Const. amend. IV."

Walters v. Freeman, No. 13-14407, 2014 WL

3456848, at *3 (11th Cir. July 16, 2014) (per curiam) (not selected
for publication in the Federal Reporter). As recently noted by the
Eleventh Circuit, in determining whether the means and manner in
which officers seized a suspect was objectively unreasonable and in
violation of the Fourth Amendment and its reasonableness standard,
the following analysis is employed:
Because "[t]he test of reasonableness under
the Fourth Amendment is not capable of precise
definition or mechanical application," Bell v.
Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861,
1884, 60 L.Ed.2d 447 (1979), "its proper
application 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 [the suspect] is actively
resisting arrest or attempting to evade arrest
by flight," Graham, 490 U.S. at 396, 109 S.Ct.
at 1872.
Therefore, a police officer's "use of
force must be judged on a case-by-case basis
from the perspective of a reasonable officer
- 9 -

on the scene, rather than with the 20/20
vision of hindsight." Jackson v. Sauls, 206
F.3d 1156, 1170 (11th Cir. 2000) (quotation
marks omitted and alterations adopted). "The
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." Graham, 490 U.S. at
396–97, 109 S.Ct. at 1872. Because "[t]he hazy
border between permissible and forbidden force
is marked by a multifactored, case-by-case
balancing test," Jackson, 206 F.3d at 1170
(quotation
marks
omitted),
"[t]he
test
requires weighing of all the circumstances,"
Smith v. Mattox, 127 F.3d 1416, 1419 (11th
Cir.
1997),
and
sloshing
"through
the
factbound morass of 'reasonableness,'" Scott,
550 U.S. at 383, 127 S.Ct. at 1778.
"The question is whether the officers'
actions are 'objectively reasonable' in light
of the facts and circumstances confronting
them, without regard to their underlying
intent or motivation." Jackson, 206 F.3d at
1170 (quotation marks omitted and alterations
adopted). "An officer's evil intentions will
not make a Fourth Amendment violation out of
an objectively reasonable use of force; nor
will an officer's good intentions make an
objectively
unreasonable
use
of
force
constitutional." Graham, 490 U.S. at 397, 109
S.Ct. at 1872.
Gaillard v. Commins, 562 F. App'x 870, 874-75 (11th Cir. 2014).
Simply, "a police officer must not use excessive force in the
course of an arrest."

Grimes v. Yoos, 298 F. App'x. 916, 921 (11th

Cir. 2008) (per curiam) (citing Graham v. Connor, 490 U.S. 386,
388,

394-95

(1989)).

Here,

Plaintiff

asserts

a

failure

to

intervene by twelve Defendants; "'[i]f a police officer, whether

- 10 -

supervisory

or

not,

fails

or

refuses

to

intervene

when

a

constitutional violation such as an unprovoked beating takes place
in his presence, the officer is directly liable under Section
1983.'"

Dukes v. Miami-Dade Cnty., 232 F. App'x 907, 913 (11th

Cir. 2007) (per curiam) (quoting Ensley v. Soper, 142 F.3d 1402,
1407 (11th Cir. 1998) (internal citation and quotation omitted)).
However, "[t]his liability only applies when the defendant officer
was in a position to intervene."

Id. (emphasis added).

Indeed, "[a] police officer with the ability to do so must
intervene to stop another police officer's use of excessive force."
Grimes, 298 F. App'x at 921 (citing Priester v. City of Riviera
Beach,

Fla.,

Plaintiff's

208

F.3d

allegations

919,

924-25

must

include

(11th
facts

Cir.

2000)).

showing

But,

the

"real

opportunity" for the officers to intervene in the alleged unlawful
conduct.

See Keating v. City of Miami, 598 F.3d 753, 764 (11th

Cir. 2010) (citation omitted).

Also, Plaintiff "has the burden to

demonstrate that the defendant was in a position to intervene but
failed to do so."

Ledlow v. Givens, 500 F. App'x 910, 914 (11th

Cir. 2012) (per curiam), cert. denied, 133 S.Ct. 2802 (2013).
Thus,

Plaintiff

must

show

that

each

Defendant

had

a

real

opportunity to intervene, the ability to intervene, and was in a
position to actually intervene, but failed to do so.

- 11 -

VI.

Findings of Fact and Conclusions of Law

A. Plaintiff Concedes Summary Judgment to Nine Defendants
Based on Plaintiff concession of summary judgment to C. C.
Barnhardt, T. C. Haire, C. A. Moore, G. M. Oliveras, H. Baker, IV,
M. T. Summers, R. Vercruysse, G. B. Futch, and J.D. Warren, the
Court grants Plaintiff's request to grant summary judgment to
Defendants C. C. Barnhardt, T. C. Haire, C. A. Moore, G. M.
Oliveras, H. Baker, IV, M. T. Summers, R. Vercruysse, G. B. Futch,
and J.D. Warren.

Therefore, Defendants C. C. Barnhardt, T. C.

Haire, C. A. Moore, G. M. Oliveras, H. Baker, IV, M. T. Summers, R.
Vercruysse, G. B. Futch, and J.D. Warren's Motion for Summary
Judgment is due to be granted and they will be dismissed from this
action with prejudice.
B.

Twelve Defendants Seeking Summary Judgment

Defendants Bogert, Bowen, Mosley, Zona, Williams, Woolery,
Collier, Gayle, Langley, Fallis, Osilka, and Moon seek summary
judgment, and Plaintiff has not conceded that they should be
granted summary judgment.

Briefly, they contend the following in

the Motion for Summary Judgment.

Defendant Bogert asserts that

Plaintiff fails to establish a failure to intervene by Bogert as he
was not in a position to intervene as he was directing southbound
traffic on Roosevelt Boulevard.

Motion for Summary Judgment at 7.

Defendant Bowen claims that Plaintiff fails to establish he failed
to intervene as Plaintiff was already subdued, handcuffed, and on
- 12 -

the ground when Bowen arrived at the scene, and he left the scene
to investigate Plaintiff's route through Clay and Duval counties.
Id. Defendant Mosley claims that Plaintiff fails to establish that
Mosley failed to intervene because, when Mosley arrived at the
scene, Plaintiff was already lying on the ground handcuffed and
Mosley assisted with traffic control.

Id. at 9.

Defendant Zona

contends that Plaintiff fails to establish he was in a position to
intervene as Zona never saw Plaintiff.

Id. at 11.

Zona explains

that when he arrived at the scene, Defendant Merritt was returning
Id. at 11.

the K-9 to its kennel.

Zona briefly spoke with

Merritt, but Zona received a phone call from his Sergeant and
departed to another service call.

Id.

Also, Defendant Williams claims Plaintiff fails to establish
that he was in a position to intervene.
that

he

K-9

engage

Plaintiff's hand and caught a glimpse of Officer Merritt.

Id. at

11-12.

observed

the

Defendant

collisions

Defendant Williams states

Williams

and

further

he

saw

states

the

that

he

observed

sufficient officers assisting Merritt at Plaintiff's vehicle, so
Williams turned his attention to the injured victim in the other
vehicle.

Id. at 12.

He contends that he never had any contact

with Plaintiff or saw any officers use excessive force as his
attention was elsewhere.
Plaintiff

fails

intervene.

Id.

to

Id.

establish

Defendant Woolery also claims
that

he

was

in

a

position

to

When he arrived at the crash scene seconds after

- 13 -

the crash, he went to the victim in the red truck who was
unconscious and bleeding from the head.
was about thirty feet away.

Id.

Id.

Plaintiff's vehicle

Woolery observed officers trying

to remove Plaintiff from his vehicle, he saw the K-9 by Plaintiff's
truck barking, he could hear officers yelling for Plaintiff to get
out of the vehicle, he saw officers pull Plaintiff out of the
truck, and he observed Plaintiff fall to the ground.

Id.

Woolery

alleges that at that point he turned his attention to the victim,
Edwin Soto.

Id.

stop resisting.

Woolery heard officers yelling at Plaintiff to
Id.

Thereafter, he states he saw Plaintiff

handcuffed on the ground and the K-9 and handler were several feet
away.

Id.
Defendant Collier, an African American male and the Lieutenant

in charge, managed the pursuit over the radio.

Id. at 8.

He

claims he arrived at the termination point approximately five to
ten minutes after the crash and never made contact with Plaintiff.
Id.

Defendant Gayle, a patrol Lieutenant, asserts that he did not

observe Plaintiff being arrested and handcuffed; however, one of
his officers and a sergeant responded to the incident.

Id.

Defendants Langley and Fallis claim they arrived in a patrol
vehicle after Plaintiff was taken into custody and left the scene
as they were not needed.

Id. at 9.

Defendant Osilka claims he was

located at I-295 at U.S. 17, waiting to deploy stop sticks;
however, when Plaintiff's vehicle passed him, Plaintiff was driving

- 14 -

on flat tires so Osilka did not deploy stop sticks.

Id. at 10.

Osilka asserts that when he arrived at the crash scene, Plaintiff
was in custody.

Id.

Finally, Defendant Moon claims he saw a cloud

of dust and debris, parked his patrol vehicle on the right shoulder
of Roosevelt Boulevard, and walked up to the crash scene.
11.

Id. at

He states that he saw Plaintiff handcuffed on the ground but

he did not see Plaintiff removed from the truck, handcuffed, or any
use of force.

Id.

He alleges that he departed the scene to

complete a damage report for his vehicle.

Id.

These twelve Defendants assert that "Plaintiff cannot present
any substantial evidence that any of the movants were in a position
to intervene or had an opportunity to intervene."

Id. at 14.

Thus, they claim they are entitled to qualified immunity.

Id.

Of import, Plaintiff states in his Surreply that "Plaintiff
has claimed that the unconstitutional excessive use of force did
not occur until the K-9 had disengaged and the Plaintiff was
handcuffed and facedown on the pavement."

Surreply at 4 (emphasis

in original). Therefore, based on Plaintiff's statement clarifying
his Complaint, the Court will address his claim of excessive force
and failure to intervene with respect to the period of time
specifically designated in Plaintiff's Surreply.
The Eleventh Circuit explained what constitutes statements
that are sufficient to create a fact issue when addressing a motion
for summary judgment:

- 15 -

The Rules are clear: "Supporting and opposing
affidavits
shall
be
made
on
personal
knowledge."
Fed.R.Civ.P. 56(e) (emphasis
added).
Rule 56(e)'s personal knowledge
requirement prevents statements in affidavits
that are based, in part, "upon information and
belief" --instead of only knowledge-- from
raising genuine issues of fact sufficient to
defeat summary judgment.
See Stewart v.
Booker T. Washington Ins., 232 F.3d 844, 851
(11th Cir. 2000) ("upon information and
belief" insufficient); Fowler v. Southern Bell
Tel. and Tel. Co., 343 F.2d 150, 154 (5th Cir.
1965) ("knowledge, information and belief"
insufficient); Robbins v. Gould, 278 F.2d 116,
118 (5th Cir. 1960) ("knowledge and belief"
insufficient). Likewise, an affidavit stating
only that the affiant "believes" a certain
fact exists is insufficient to defeat summary
judgment by creating a genuine issue of fact
about the existence of that certain fact.
Jameson v. Jameson, 176 F.2d 58, 60 (D.C. Cir.
1949) ("Belief, no matter how sincere, is not
equivalent to knowledge."); see also Tavery
v. United States, 32 F.3d 1423, 1426 n.4 (10th
Cir. 1994); Hansen v. Prentice-Hall, Inc., 788
F.2d 892, 894 (2d Cir. 1986).
Even if the
affidavit is otherwise based upon personal
knowledge (that is, includes a blanket
statement within the first few paragraphs to
the effect that the affiant has "personal
knowledge of the facts set forth in th[e]
affidavit"), a statement that the affiant
believes something is not in accordance with
the Rule.
See Certmetek, Inc. v. Butler
Avpak, Inc., 573 F.2d 1370, 1377 (9th Cir.
1978) (equating "I understand" statement in
affidavit
to
inadmissible
"I
believe"
statements and concluding that statement is
inadmissible despite general averment to
personal knowledge at beginning of affidavit).
Pace v. Capobianco, 283 F.3d 1275, 1278-79 (11th Cir. 2002)
(footnote omitted).

- 16 -

First, the Court looks to the Complaint.

Plaintiff merely

alleges that these Defendants were "present" and "observed the
unconstitutional unnecessary use of force and failed to intervene
despite the obvious risk of death or serious injury to Plaintiff."
Complaint at 10.

Plaintiff does not, however, with regard to

intervention, specifically address opportunity, capability, and
position of each Defendant.

Plaintiff, in his deposition, states

that he is relying on a Computer-Aided Dispatch (CAD) report that
references

the

officers

and

Howard

M.

Maltz's

(a

City

of

Jacksonville attorney) response to an interrogatory in Plaintiff's
state court case against the City of Jacksonville that "[t]o the
best of my knowledge" eighteen JSO officers were at the scene. Ex.
2 (Doc. 67-2 at 36); See Motion for Summary Judgment at 13 n.5.

An

affidavit or declaration based on belief is not sufficient to
defeat summary judgment by creating a genuine issue of fact about
the existence of that fact.
personal knowledge.

The declaration must be made on

Pace, 283 F.3d at 1278-79.

Mention of a

dispatch report referencing officers and an attorney's statement
that "to the best of my knowledge" JSO officers were at the scene
does not demonstrate opportunity, ability, position, and the duty
or assignment of each officer.

Also, the statement by Mr. Maltz

lacks personal knowledge of the events.

Thus, the statement does

not raise genuine issues of fact sufficient to defeat summary
judgment.

Harrison v. Culliver, 746 F.3d 1288, 1300 n.16 (11th

- 17 -

Cir. 2014) (not crediting a statement as creating a genuine issue
of fact because the statement itself evinces that the individual
did not rely on his personal knowledge of the incident) (citation
omitted).

See Motion for Summary Judgment at 17 n.6.

Plaintiff references his sworn Declaration.

Plaintiff's

Exhibit B (Doc. 77 at 22-24). In pertinent part, Plaintiff states:
"[w]hile

remaining

officers

observed

and

failed

to

intervene

despite the noises and screams for help, despites [sic] the obvious
risk of death or serious injury."

Id. at 24.

Barbara Ann Dutton's sworn Declaration.
(Doc. 77-1 at 2-4).

He also provides

Plaintiff's Exhibit C

She states that while she was in the back of

a squad car, she "heard distressed noises and screams for help"
from her husband and observed under one of the vehicles "numerous
feet around and over" her husband.

Id. at 3.

In the Response, Plaintiff states that Defendant Mosley admits
he was at the scene after Plaintiff was on the ground handcuffed
and there is a genuine issue of material fact as to whether he was
in a position to intervene when Plaintiff was beaten by several
officers. Response at 4. In contrast, Mosley's Declaration states
that he arrived at the scene of the crash after its occurrence.
Ex. 3m (Doc. 67-3 at 25).

He saw Plaintiff lying on the ground,

handcuffed, but then Mosley assisted with traffic control.

Id.

There is no evidence before the Court that Mosley observed any
abuse by officers or that he had an opportunity or the actual

- 18 -

position to be able to intervene. It is Plaintiff's burden to show
that Mosley had the ability to intervene but failed to do so.
Plaintiff has failed to meet this burden.
With respect to Defendant Bowen, Plaintiff states that Bowen
was on the scene after Plaintiff was handcuffed and on the ground.
Response at 5.
issue

of

He claims this is sufficient to present a genuine

material

fact

as

to

whether

Bowen

was

capable

intervening and stopping the beating by several officers.
7.

of

Id. at

On the contrary, Plaintiff has failed to present any evidence

that Bowen had the opportunity to observe or halt any excessive
force directed at Plaintiff.

Bowen's Declaration states that when

he arrived at the termination point, Plaintiff was handcuffed and
on the ground.

Ex. 3d (Doc. 67-3 at 7).

Bowen left the scene to

investigate the route taken by Plaintiff during the chase. Id. He
attests that he never made contact with Plaintiff or observed any
use

of

force

on

Plaintiff.

Id.

Plaintiff

has

failed

to

demonstrate that Bowen was in a position to intervene and failed to
act.
In Defendant Zona's Declaration, he states that he arrived at
the termination point after the crash.

Ex. 3t (Doc. 67-3 at 40).

He attests that he saw Officer Merritt walking back towards his
vehicle to place his K-9 in a kennel.
Officer Merritt.

Id.

Id.

Zona briefly spoke with

Zona states that he received a call from his

Sergeant directing him to leave the scene to answer another service

- 19 -

call.

Id.

He states that he "never saw or made personal contact

with the Plaintiff."

Id.

Additionally, he states that he never

saw any use of force on Plaintiff.
Plaintiff,

in

his

Response,

Id.
to

counter

this

information

states: "[r]eason has it that when Officer Merritt was walking his
police dog back to his patrol vehicle the excessive use of force
had commenced and was in progress just feet away from where
Defendant ZONA was admittedly at."

Response at 7-8.

Although

Plaintiff may believe ("reason has it") that as Officer Merritt was
walking his police dog back to his patrol vehicle the use of force
was in progress feet away from Defendant Zona, his deposition
testimony shows that Plaintiff had no idea where the dog was taken
after Plaintiff was removed from the truck.
23).

Ex. 2 (Doc. 67-2 at

An affidavit or sworn complaint based on belief is not

sufficient to defeat summary judgment by creating a genuine issue
of fact about the existence of that certain fact. Yes, Zona admits
that he was briefly at the scene and spoke with Officer Merritt,
but he was called away by his Sergeant.

Here, Plaintiff has no

personal knowledge as to whether the use of force was in progress
at the time Zona spoke with Merritt and whether Zona was in a
position to intervene at the time of any use of force.

In sum,

"insufficient competent evidence exists to support Plaintiff's
version of the facts" regarding his claim that Zona had the
opportunity, capability, and position to intervene during excessive

- 20 -

use of force by other officers.

Pace, 283 F.3d at 1278.

There is

no real basis in the record for this factual issue to be considered
genuine.

Plaintiff's

allegation

in

the

Complaint

that

Zona

"observed the unconstitutional unnecessary excessive use of force
and failed to intervene despite the obvious risk of death or
serious injury to Plaintiff" is unsupported by the record before
the Court.

Complaint at 10.

Plaintiff has not met his burden.

Defendant Moon, in his Declaration, states that he saw the
cloud of dust and debris from the crash.

Ex. 3k (Doc. 67-3 at 21).

He took the time to report the crash via police radio.

Id.

He

parked his police car on the right shoulder of Roosevelt Boulevard
and then walked to the location of the scene of the crash.

Id. at

22.

At that point, Plaintiff was handcuffed and on the ground.

Id.

Moon spoke with his lieutenant about the damage to Moon's

vehicle, and the lieutenant advised him he was not needed at the
scene and to depart to complete a damage report.

Id.

Moon attests

that he did not see Plaintiff removed from the truck, handcuffed,
or any use of force.

Id.

contact with Plaintiff.

Finally, he states he had no personal

Id.

In Response, Plaintiff surmises that

Moon was in the area at the time of the excessive use of force and
therefore possibly could have heard Plaintiff screaming.

Response

at

has

10.

The

evidence

here

is

limited.

Plaintiff

not

demonstrated that Moon was in a position to intervene at the time
of any excessive use of force.

Indeed, Plaintiff has failed to

- 21 -

show that Moon had the ability to reasonably insert himself into
any confrontation between the police and Plaintiff.
Upon review, Defendant Osilka has not submitted a sworn
declaration, affidavit or deposition testimony in support of his
motion for summary judgment.

Instead, Defendant Osilka submitted

unsworn Answers to Plaintiff's First Amended Interrogatories for
this Court's consideration on summary judgment.
at 4-5).

Ex. 1 (Doc. 67-1

Unsworn statements cannot be considered by this Court in

addressing a summary judgment motion.

Carr v. Tatangelo, 338 F.3d

1259, 1273 n.26 (11th Cir. 2003).
Summary judgment is appropriate if the pleadings and other
evidence demonstrate that "there is no genuine dispute as to any
material fact and the movant is entitled to a judgment as a matter
of law."
Osilka,

Fed. R. Civ. P.
"[t]he

moving

But, of import regarding Defendant

party

bears

the

initial

burden

of

showing . . . that there are no genuine issues of material fact[.]"
Allen, 495 F.3d at 1313-14 (citation omitted). If the moving party
satisfies this burden, then "the non-moving party must . . . go
beyond the pleadings . . . [to] designate specific facts showing
that there is a genuine issue for trial."

Id.

(citation and

quotation marks omitted).
Here, Defendant Osilka has not discharged his initial burden
of showing that there are no genuine issues of material fact.

His

unsworn answers "plainly do not pass summary judgment muster."

- 22 -

MacDonald v. Circle K Stores, Inc., No. 6:08-cv-1825-Orl-22DAB,
2009 WL 113377, at *1 (M.D. Fla. Jan. 16, 2009).
this

juncture,

Plaintiff

is

not

obligated

to

Therefore, at
go

beyond

the

pleadings to designate specific facts showing that there remains a
genuine issue for trial, and based on the record before the Court,
Defendant Osilka is not entitled to summary judgment.
Plaintiff in his response argues that Defendant Williams was
in a position to intervene, despite the fact that he at least
thirty feet away from Plaintiff's position attending to the victim
in the other vehicle.

Response at 12-13; Ex. 3r (Doc. 67-3 at 35-

36); Ex. 3s (Doc. 67-3 at 38). Williams, in his sworn Declaration,
states that he observed the collisions.

Ex. 3r (Doc. 67-3 at 35).

He also caught "a glimpse [of] Officer Merritt and his K-9 engage
the Plaintiff's hand." Id. He also observed that there were other
officers near the Plaintiff's truck who could provide support to
Officer Merritt; therefore, Williams turned his attention to the
injured victim in the other vehicle. Id. Williams attests that he
had no contact with Plaintiff and did not observe any use of force
except the K-9 engaging Plaintiff's hand.

Id. at 35-36.

Plaintiff has failed to show that Williams observed any
violation or had the opportunity to intervene.

Again, it is

Plaintiff's burden to demonstrate that Officer Williams was in a
position to intervene and had the capability to intervene.
note,

the

victim

in

the

other

vehicle

- 23 -

had

life

Of

threatening

injuries. Plaintiff's Exhibit D (Doc. 77-1 at 8). Williams turned
his attention to the victim once he saw that there were sufficient
officers available to assist Officer Merritt.

Plaintiff has not

shown that Defendant Williams "stood idly by while a fellow officer
mistreated" Plaintiff.
Cir. 1998).

Ensley v. Soper, 142 F.3d 1402, 1407 (11th

Plaintiff has not presented evidence contradicting

Williams' sworn statement that he turned his attention to the
victim of the crash after observing the canine engage Plaintiff and
he did not observe any further use of force on Plaintiff.

Indeed,

this is not an instance where an officer simply stood by and
watched the entire event and failed to intervene although in a
position to intervene.

Here, Defendant Williams was performing

other duties which deserved his immediate attention, attending to
the seriously injured victim of the crash.

See id. (recognizing

that an officer has the discretion to decide what matters deserve
his immediate attention).
Defendant Woolery also states that upon arriving at the crash
scene, he attended to the victim of the car crash, Edwin Soto.
3s (Doc. 67-3 at 37).

Woolery attests to the following:

I arrived at the crash scene seconds
after Plaintiff crashed into the red truck,
being driven by Mr. Soto. I went up to the
[sic] Mr. Soto and saw that he was unconscious
and bleeding from his head. When I was at Mr.
Soto's vehicle, I looked over towards the
Plaintiff's vehicle and I observed two
officers trying to get the Plaintiff out of
his vehicle.
In addition, I saw the K-9
officer standing by the Plaintiff's truck.
- 24 -

Ex.

The police K-9 was barking. I could hear the
officers yelling at Plaintiff to get out of
the vehicle.
After yelling this several
times, the Plaintiff was pulled out of the
truck and to the ground.
At this point, I
turned my attention back to the victim of the
crash, Edwin Soto, who was about 30 feet or
more from the Plaintiff's location. I could
hear the officers yelling at Plaintiff to
"stop resisting."
When I turned and looked
back over to the Plaintiff, I saw him laying
on the ground handcuffed, and the K-9 officer
and his handler were several feet away. I did
not observe any officers using force on the
Plaintiff after he was handcuffed.
Id. at 37-38 (emphasis added).
At

Plaintiff's

criminal

trial,

Woolery

testified

to

the

following:
When I arrived on the scene there were
two officers with the defendant, so I
immediately went over to the victim's vehicle.
He was slumped over the steering wheel.
I
made contact with him. I set him up, opened
the airway so he could breathe.
He was
covered in blood.
I asked him what his
injuries were. He informed me, of course, his
head was hurting him real bad and his back. I
told him to stay still. I didn't want him to
move because I didn't know what type of
injuries he had to his back. I made contact
with him until rescue came on scene and then I
turned him over to rescue.
Plaintiff's Exhibit D (Doc. 77-1 at 8) (emphasis added).
Plaintiff surmises, without evidentiary support, that Woolery
looked inside Plaintiff's vehicle while Plaintiff was "trapped
inside by the airbag[.]" Response at 14.

The question asked of

Woolery was, after he assisted in getting Mr. Soto placed in an
ambulance, did he go back and inspect Plaintiff's car. Plaintiff's
- 25 -

Exhibit D (Doc. 77-1 at 11)
inspecting the vehicle.

Id.

He responded "no" to the question of
When asked if he ever looked inside

Plaintiff's vehicle, Woolery responded in the affirmative, stating
he saw an open container of an alcoholic beverage in the vehicle as
well as a cooler with three unopened cans of beer inside of it.
Id.

He did not recall seeing blood in the car.

Id.

Upon inquiry,

when asked about whether Plaintiff was injured as a result of the
accident, Woolery stated that when he saw the officers getting
Plaintiff out of the vehicle, Plaintiff had a laceration to his
forehead.

Id.

He further attested that he saw Plaintiff lying on

the ground, handcuffed behind his back.

Id. at 11-12.

Finally,

Woolery said he did see "some blood on the cement[,]" and he
assumed the blood came from injuries Plaintiff received from the
accident.

Id. at 12.

Plaintiff has failed to meet his burden and demonstrate that
Defendant Woolery had a real opportunity to intervene, the ability
to intervene, and was in a position to actually intervene, but
failed to do so.

The evidence shows that when Woolery arrived at

the scene of the crash, he proceeded to attend to the crash victim,
Mr. Soto, who was seriously injured when his vehicle was struck by
Plaintiff's vehicle.

The evidence before the Court shows that Mr.

Soto was thirty or more feet away from Plaintiff's location.
Although Woolery observed Plaintiff being pulled out of the truck
and put on the ground, Woolery's attention was primarily directed
at the victim, Mr. Soto.

Woolery attested that he sat Mr. Soto up,
- 26 -

opened his airway, obtained information from him concerning his
injuries, advised him not to move, and remained in contact with him
until he was turned over to rescue.

When Woolery was asked if,

after getting Mr. Soto into an ambulance, he inspected Plaintiff's
vehicle, Woolery responded that he did not inspect the vehicle, but
he looked into it.

Finally, he saw some blood on the cement, which

he assumed came from Plaintiff's injuries from the accident.
Defendant Woolery was performing other duties which deserved
his immediate attention, attending to the seriously injured victim
of the crash.

This was certainly an urgent matter, and Woolery,

when he arrived at the crash scene, had the discretion to decide to
aid the victim, particularly under the circumstances when other
officers were already with the Plaintiff.

Also, Woolery was at

least thirty feet away from Plaintiff, and he remained in that
position until rescue personnel took over responsibility for Mr.
Soto.

There is no evidence that Woolery was in a position to

intervene.

Indeed, there is no evidence before the Court showing

that Woolery had an opportunity to halt any excessive force under
these exigent circumstances in which he was attending to a victim
with life threatening injuries.
Defendant Fallis, in his Declaration, states that he was
riding in a car with Defendant Langley.

Ex. 3f (Doc. 67-3 at 11).

When they arrived, "Plaintiff had already been taken into custody."
Id.

Fallis did not have contact with Plaintiff and he did not

observe any use of force on Plaintiff.
- 27 -

Id.

Fallis attests that

because the situation was under control when they arrived, they
left and returned to regular patrol duties. Id. Defendant Langley
states that he was riding in a car with Fallis, they arrived after
the crash, Plaintiff had already been taken into custody, the
situation was under control when they arrived, and they left to
attend to regular patrol duties.

Ex. 3j (Doc. 67-3 at 19-20).

Plaintiff, in his Response, suggests that these Defendants may
have been in a position to intervene, depending on what they mean
by Plaintiff already being "taken into custody."

Response at 15.

Plaintiff testified in his deposition that the CAD report said they
were at the scene, and all he is required to do to defeat summary
judgment is put them at the scene.

Ex. 2 (Doc. 67-2 at 36-37).

This is simply not enough to demonstrate failure to intervene.
Again, Plaintiff has the burden to show that these Defendants were
in a position to intervene.

Upon review, Plaintiff has failed to

provide any evidence demonstrating that Defendants Langley and
Fallis had a real opportunity to intervene and the ability and
position to intervene, but failed to do so.
Defendant Bogert attests that he arrived at the termination
point of the pursuit, but his role was to direct southbound traffic
on Roosevelt Boulevard.

Ex. 3c (Doc. 67-3 at 5).

He states he had

no contact with Plaintiff and he did not observe any officers using
force on Plaintiff. Id. Plaintiff, in his Response, suggests that
Bogert could have been as close as thirty feet from him as a
portion of Roosevelt Boulevard is approximately thirty feet from
- 28 -

the location of the use of force.

Response at 16.

However, for

Bogert to be liable for failing to stop police brutality, he must
have been in a position to intervene.

Here, Bogert was directing

traffic, an action undertaken to protect the safety of the public
after a serious car crash with life threatening bodily injuries
sustained by at least one victim.
demanding of immediate attention.

This was certainly a matter
Plaintiff has failed to present

any evidence showing that Defendant Bogert, at any time, had the
opportunity and position to halt any excessive force directed at
Plaintiff while Bogert was directing traffic on Roosevelt Boulevard
after multiple car crashes.
Defendant Collier, an African American male, notes that he was
the Lieutenant in Charge for JSO, managing the pursuit of Plaintiff
on the radio.

Ex. 3e (Doc. 67-3 at 9).

He states that he arrived

five to ten minutes afer the truck crash.
arrived, he did not see Plaintiff.

Id.

Id.

When Collier

Collier assumes, based on

Plaintiff's absence from the crash scene, that he was already
placed in an ambulance.

Id.

Collier states he never made contact

with Plaintiff, and he did not observe any use of force on
Plaintiff.

Id. at 10.

Plaintiff, in his Response, notes that Collier apparently
believes he arrived at the scene within five to ten minutes of the
crash.

Response at 17.

Plaintiff asserts that because Collier

arrived at the scene shortly after the crash, the question remains
as to whether he could have been in a position to intervene.
- 29 -

Id.

Collier, however, attests that he never saw Plaintiff.

Based on

the evidence before the Court, Collier was never in a position to
intervene because he never saw Plaintiff at the scene.

In sum,

there is no evidence in the record that might show that Collier
observed officers abuse Plaintiff or that he had the opportunity to
intervene.

This is not a situation when a supervising officer

stands idly by watching his officers using excessive force.

Based

on the evidence before the Court, Plaintiff was not at the crash
scene or was already in the ambulance when Collier arrived at the
scene.

Thus, Collier did not observe the violation or have the

opportunity to intervene.

Against this evidence, Plaintiff offers

nothing that might show that Collier did observe excessive force,
was in a position to intervene, and failed to act.
Defendant Gayle, in his Declaration, states that he monitored
the pursuit on the police radio, but he had no involvement in the
pursuit of Plaintiff.

Ex. 3h (Doc. 67-3 at 15).

He further

attests that he went to the termination point after Plaintiff
crashed,
arrested.

but
Id.

did

not

witness

Plaintiff

being

handcuffed

or

Gayle states that he had no contact with Plaintiff

and he did not witness any officers using force on Plaintiff.

Id.

Plaintiff, in his Response, counters that Gayle admits he arrived
at the termination point; therefore, he concludes there is a
genuine issue of material fact as to whether or not he was in a
position to intervene. Response at 18. Plaintiff has presented no
evidence that Gayle observed any use of force on Plaintiff or had
- 30 -

the ability to intervene. Upon review of the record, Plaintiff has
not shown that Gayle was present at the scene during the period of
time officers allegedly used excessive force and was actually in a
position to intervene yet failed to do so.
In

conclusion,

except

with

respect

to

Defendants are entitled to summary judgment.

Defendant

Osilka,

"A mere 'scintilla'

of evidence supporting the opposing party's position will not
suffice; there must be enough of a showing that the jury could
reasonably find for that party."

Milledge v. Rayonier, Inc., 192

F. App'x 859, 860-61 (11th Cir. 2006) (per curiam) (quoting Walker
v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990)).

Upon due

consideration, there is no evidence from which a reasonable jury
could find that Defendants Bogert, Bowen, Collier, Fallis, Gayle,
Langley, Moon, Mosley, Williams, Woolery, and Zona had a real
opportunity to intervene and the ability and position to intervene,
but failed to do so. Thus, Defendants' Motion for Summary Judgment
will be granted, except with respect to Defendant Osilka.
Defendants Bogert, Bowen, Collier, Fallis, Gayle, Langley,
Moon, Mosley, Williams, Woolery, Zona and Osilka claim they are
entitled to qualified immunity from monetary damages in their
individual capacities.

Motion for Summary Judgment at 18-22.

It

is undisputed that the Defendants were engaged in discretionary
functions during the events in question.

The question remains as

to whether Defendant Osilka violated Plaintiff's constitutional
rights and is therefore entitled to qualified immunity in his
- 31 -

individual capacity.

Given the undersigned's conclusion that

summary judgment be denied as to the Fourth Amendment claim against
Defendant Osilka, and based on the state of the law on qualified
immunity in the Eleventh Circuit, qualified immunity should be
denied as to Defendant Osilka.
To defeat qualified immunity with respect to the remaining
Defendants (Bogert, Bowen, Collier, Fallis, Gayle, Langley, Moon,
Mosley, Williams, Woolery, and Zona), Plaintiff must show both that
a constitutional violation occurred and that the constitutional
right violated was clearly established.

Fennell v. Gilstrap, 559

F.3d 1212, 1216 (11th Cir. 2009) (per curiam).

Since these

Defendants were acting within the scope of their discretionary
authority when the alleged failure to intervene occurred, the
burden is on Plaintiff to show that the Defendants are not entitled
to qualified immunity.

Skop v. City of Atlanta, 485 F.3d 1130,

1136-37 (11th Cir.), reh'g and reh'g en banc denied, 254 F. App'x
803 (11th Cir. 2007).

Here, a reasonable jury could not find that

the Defendants Bogert, Bowen, Collier, Fallis, Gayle, Langley,
Moon, Mosley, Williams, Woolery, and Zona violated Plaintiff's
Fourth Amendment rights; therefore, Defendants Bogert, Bowen,
Collier, Fallis, Gayle, Langley, Moon, Mosley, Williams, Woolery,
and Zona are entitled to qualified immunity.
Because these Defendants did not commit a constitutional
violation, they are entitled to qualified immunity.

See Hadley v.

Gutierrez, 526 F.3d 1324, 1331 (11th Cir. 2008) (citing Priester v.
- 32 -

City of Riviera Beach, Fla., 208 F.3d 919, 924 (11th Cir. 2000))
(finding the plaintiff failed to present evidence from which a
reasonable jury could find that the defendant could have stopped
the use of force); Ensley, 142 F.3d at 1408 (concluding that no
reasonable juror could find that the defendant was in a position to
intervene and finding "no evidence that might lead a reasonable
juror

to

conclude

that

[the

defendant]

violated

any

clearly

established right of [the plaintiff] to intervention.").
Therefore, it is
ORDERED:
1.

The Motion by Defendants [H. Baker, IV, C. C. Barnhardt,

M. T. Bogert, K. W. Bowen, E. Collier, G. B. Futch, L. J. Gayle, T.
C. Haire, B. D. Langley, C. A. Moore, M. R. Mosley, G. M. Olivera,
G. Osilka, M. T. Summers, R. E. Vercruysse, J. D. Warren, M. A.
Zona, D. T. Fallis, M. W. Moon, J. C. Williams, and W. J. Woolery]
for Final Summary Judgment (Doc. 66) is GRANTED with respect to all
claims against these Defendants, except for the Fourth Amendment
claim of failure to intervene against Defendant G. Osilka.
2.

The Court will withhold directing the entry of judgment

to that effect pending adjudication of the action as a whole.

See

Fed. R. Civ. P. 54.
DONE AND ORDERED at Jacksonville, Florida, this 11th day of
September, 2014.

- 33 -

sa 9/11
c:
Frederick Charles Dutton, Jr.
Counsel of Record

- 34 -