Austin v. Dr. Barnes et al

Filing 44

ORDER granting [21, 34, 35] Defendants' Motions to Dismiss, with directions to the Clerk to close the case. Signed by Judge Marcia Morales Howard on 7/18/2019. (BL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

ANTHONY LAVON AUSTIN,
Plaintiff,
v.

Case No. 3:18-cv-484-J-34MCR

DR. DANA BARNES, et al.,
Defendants.
ORDER
I. Status
Plaintiff Anthony Lavon Austin, an inmate of the Florida penal
system, initiated this action on April 12, 2018, by filing a pro se
Civil Rights Complaint (Doc. 1). He filed an Amended Complaint (AC;
Doc. 5) with exhibits (Docs. 5-1 through 5-16) on May 25, 2018. In
the AC, Austin asserts claims pursuant to 42 U.S.C. § 1983 against
the following Defendants: (1) Dr. Dana Barnes, M.D.; (2) Detective
E. Valerio, Jacksonville Sheriff's Office (JSO); (3) JSO Detective
G. Thompkins; (4) JSO Detective J.E. Bisque; (5) JSO Detective Z.M.
Anderson; (6) Dr. Kuhn, M.D.; and (7) JSO Officer Kerns.1 He
alleges that the Defendants violated his federal constitutional
rights when Thompkins used excessive force against him during an
April 11, 2014 arrest, and Barnes, Valerio, and Anderson denied him
1

The Court dismissed Austin's claims against Defendants
Kerns, Bisque, and Kuhn on January 8, 2019. See Order (Doc. 33).

timely and proper medical care. As relief, he seeks compensatory,
punitive, and nominal damages.
This matter is before the Court on Defendants Valerio and
Anderson's Motion to Dismiss (Motion; Doc. 21), Thompkins' Motion
to Dismiss (Thompkins Motion; Doc. 34), and Barnes' Motion to
Dismiss (Barnes Motion; Doc. 35). The Court advised Austin that
granting a motion to dismiss would be an adjudication of the case
that could foreclose subsequent litigation on the matter, and gave
him an opportunity to respond. See Order (Doc. 9). Austin filed
responses in opposition to the Motions, see Responses (Docs. 36,
42, 43), and the Motions are ripe for review.
II. Plaintiff's Allegations2
As to the underlying facts of his claims, Austin asserts that
a JSO narcotics takedown team arrested him on Friday, April 11,
2014, after Defendant Thompkins, posing as a drug user, tried to
buy marijuana from him. See AC at 5. He states that he told
Thompkins that he did not sell drugs, was on worker's compensation,
and ultimately would need a job. See id. According to Austin, he

2

In considering a motion to dismiss, the Court must accept
all factual allegations in the AC as true, consider the allegations
in the light most favorable to the plaintiff, and accept all
reasonable inferences that can be drawn from such allegations.
Miljkovic v. Shafritz and Dinkin, P.A., 791 F.3d 1291, 1297 (11th
Cir. 2015) (quotations and citations omitted). As such, the recited
facts are drawn from the AC and may differ from those that
ultimately can be proved. Additionally, because this matter is
before the Court on motions to dismiss filed by Valerio, Anderson,
Thompkins, and Barnes, the Court's recitation of the facts will
focus on Austin's allegations as to these Defendants.
2

heard screeching car tires and accelerated engines, and saw masked
officers pointing guns at him. See id. He avers that he "attempted
to run to the officers," as he screamed "my arm[,] my arm" before
they could hurt him. Id. He maintains that "Thompkins placed his
foot out in front of [Austin] to trip [him], and [Austin] "fell
hard to the ground" on his "already injured shoulder." Id. Austin
avers that Officer Bisque put his knee in the middle of Austin's
lower back, yanked Austin's arms "real hard" behind his back,
placed zip ties on his wrists, and picked him up off the ground.
Id. According to Austin, Defendant Anderson interviewed him, and
Defendant Valerio transported him to the Duval County Jail (Jail)
instead of an emergency room. See id. at 6. He states that he
explained to an intake nurse that he had undergone shoulder surgery
on his acromioclavicular (AC) joint on March 18, 2014, and was
still on worker's compensation as a result of a January 2, 2014
accident at his job site. See id. at 6-7. He asserts that the nurse
gave him two Tylenol, and advised that the doctor would determine
if he needed to go to the hospital. See id. at 6.
Austin further asserts that, the following week, he saw
Defendant Barnes, who permitted him to have an "ultra-sling II"
(brace) that Dr. Murphy at Heekin Orthopedics had prescribed for
him after the March 18th surgery. Id. He avers that he saw Dr.
Toole,

an

orthopedic

doctor,

on

May

2,

2014,

at

Shands

of

Jacksonville (Shands). See id. at 7. According to Austin, Dr. Toole

3

reviewed his January 2, March 18, and March 30, 2014 x-rays, and
explained that Austin needed surgery for his new injury, a broken
collar bone. See id. Austin states that Dr. Toole "placed an order"
on August 10th for him to undergo clavicle surgery, but JSO denied
it. See id. According to Austin, Barnes gave him Tramadol in August
2014, however, he had an allergic reaction, so she recommended
Naproxen, to which he had another allergic reaction. See id. at 8.
He avers that Barnes gave him Tylenol at a follow-up appointment,
and explained that they do not provide narcotics due to the
potential of dependency. See id. Austin states that another Shands
orthopedic doctor took an x-ray in September 2014, and advised him
that Dr. Toole had erred to the extent that Austin had a re-injury
to his AC joint, not a clavicle separation. See id. He maintains
that the Shands doctor recommended exercises, told him that they do
not perform re-injury surgeries, and advised Austin to stop wearing
the brace to avoid shoulder stiffness. See id.
Austin asserts that he reported to the Jail's medical clinic
on October 8th, at which time Barnes informed him that a Shands
doctor advised that Austin should not wear the brace. See id. at 89. He avers that Barnes asked him to remove the brace and surrender
it to her for placement with Austin's other property. See id. at 9.
Austin maintains that he told Barnes that he would not surrender
the brace to her until Dr. Murphy recommended that he no longer
wear it. See id. Austin states that, as he departed the room,

4

Barnes "yelled to [two officers who were sitting by her door] to
take the brace." Id. He avers that one officer "tackled" him to the
ground, and the other officer twisted his arm and fingers. Id. He
states that both officers kicked him in his testicles, and kneed
him in the lower back, as they tried to retrieve the brace from
him. See id. Austin asserts that other officers handcuffed him and
"dragged" him onto the elevator where the officer who initially
tackled him punched his stomach and rammed his head into the
elevator wall. Id.

According to Austin, the officer continued to

assault him as they exited the elevator, and later claimed that
Austin had spat on him. See id. He asserts that a sergeant placed
a spit guard on his face, and officers put him in a restraint chair
with his hands handcuffed behind him. See id.
Next, Austin maintains that the Jail's nurse neither addressed
his complaints of back, head, and neck pain nor treated his
injuries. See id. at 10. He states that officers took him to mental
health confinement without any medical attention. See id. He
declares that he went to Shands on October 10th for follow-up
orthopedic care. See id. He avers that officers transported him to
the custody of the Florida Department of Corrections (FDOC) on
December 3, 2014. See id. Austin blames Barnes for "neglecting" to
send [his] medical records" to support Austin's asserted need for
a bottom bunk pass, walker, wheelchair, and/or cane that the FDOC
ultimately denied him. See id. According to Austin, "[e]verybody

5

that got off the bus at Butler [(Reception and Medical Center in
Lake Butler, Florida)] had their medical records except [him]." Id.
III. Motion to Dismiss Standard
In ruling on a motion to dismiss, the Court must accept the
factual allegations set forth in the complaint as true. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Swierkiewicz v. Sorema
N.A., 534 U.S. 506, 508 n.1 (2002); see also Lotierzo v. Woman's
World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). In
addition, all reasonable inferences should be drawn in favor of the
plaintiff. See Randall v. Scott, 610 F.3d 701, 705 (11th Cir.
2010). Nonetheless, the plaintiff must still meet some minimal
pleading requirements. Jackson v. Bellsouth Telecomm., 372 F.3d
1250, 1262-63 (11th Cir. 2004) (citations omitted). Indeed, while
"[s]pecific facts are not necessary[,]" the complaint should "'give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93
(2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007)). Further, the plaintiff must allege "enough
facts to state a claim that is plausible on its face." Twombly, 550
U.S. at 570. "A claim has facial plausibility when the pleaded
factual content allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged." Iqbal,
556 U.S. at 678 (citing Twombly, 550 U.S. at 556).

6

A "plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action
will not do[.]" Twombly, 550 U.S. at 555 (internal quotations
omitted); see also Jackson, 372 F.3d at 1262 (explaining that
"conclusory allegations, unwarranted deductions of facts or legal
conclusions masquerading as facts will not prevent dismissal")
(internal citation and quotations omitted). Indeed, "the tenet that
a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions[,]" which simply
"are not entitled to [an] assumption of truth." See Iqbal, 556 U.S.
at 678, 680. Thus, in ruling on a motion to dismiss, the Court must
determine

whether

the

complaint

contains

"sufficient

factual

matter, accepted as true, to 'state a claim to relief that is
plausible on its face[.]'" Id. at 678 (quoting Twombly, 550 U.S. at
570). And, while "[p]ro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys and will, therefore,
be liberally construed," Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir. 1998), "'this leniency does not give the
court a license to serve as de facto counsel for a party or to
rewrite an otherwise deficient pleading in order to sustain an
action.'" Alford v. Consol. Gov't of Columbus, Ga., 438 F. App'x

7

837, 839 (11th Cir. 2011)3 (quoting GJR Invs., Inc. v. Cty. of
Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (internal
citation omitted), overruled in part on other grounds as recognized
in Randall, 610 F.3d at 706).
IV. Summary of the Arguments
In the Motions, Defendants maintain that Austin fails to
assert facts to state plausible claims against them for violation
of the Fourteenth Amendment, see Motion at 4-6; Barnes Motion at 25, and Fourth Amendment, see Thompkins Motion at 2-5. Additionally,
Defendants assert that they are entitled to qualified immunity. See
Motion at 6-8; Barnes Motion at 5-6; Thompkins Motion at 5. In
response to the Motions, Austin maintains that he has sufficiently
stated federal constitutional claims against the Defendants, and
that they are not entitled to qualified immunity. See Docs. 36, 42,
43.
V. Discussion
A. Fourth Amendment Excessive Use of Force
In the AC, Austin asserts that Defendant Thompkins used
excessive force during the course of his April 11, 2014 arrest when
Thompkins tripped him, causing Austin to fall on the ground and re-

3

"Although an unpublished opinion is not binding
is persuasive authority." United States v. Futrell, 209
1289 (11th Cir. 2000) (per curiam); see generally Fed.
32.1; 11th Cir. R. 36-2 ("Unpublished opinions are not
binding precedent, but they may be cited as
authority.").
8

. . . , it
F.3d 1286,
R. App. P.
considered
persuasive

injure his shoulder. See AC at 5-6. Defendant Thompkins maintains
that Austin fails "to state any facts showing that [he] used
unreasonable force under the circumstances." See Thompkins Motion
at 3. In response, Austin argues that Thompkins' reliance on Graham
v. Connor, 490 U.S. 386, 395 (1989), and McCullough v. Antolini,
559 F.3d 1201, 1206 (11th Cir. 2009), is "misplaced" to the extent
that the caselaw does not "justify" Thompkins' conduct. Response
(Doc. 42) at 2. Austin states that sale of cocaine is not a crime
of violence, and the State never charged him with resisting arrest.
See id. at 3. He also asserts that none of the officers stated that
he was aggressive or violent. See id. He concludes, in pertinent
part:
Although [D]efendant Thompkins['] counsel
is correct that Defendant Thompkins didn't
have to accept at face value the Plaintiff's
scar and his statement ("my shoulder," my
shoulder")[4] which could be considered as a
warning of a medical condition, this does not
excuse[] Defendant Thompkins['] actions of
tripping the Plaintiff with his leg so the
Plaintiff fell to the ground injuring his
shoulder[.] [I]t does not excuse Detective
Thompkins['] failure to alert the arresting
officers of the Plaintiff's medical condition
or disability in order to prevent the
[un]reasonable and unwarranted infliction of
pain, and lastly, it does not excuse[]
Defendant Thompkins['] failure to ensure that
the Plaintiff received the appropriate medical
treatment when advised by the Plaintiff about
the injury and aggravation of his needs at the
time of arrest where [it] is evident that all

4

See AC at 5 (stating that Austin screamed "my arm[,] my
arm"); see also Response (Doc. 42) at 3 (same).
9

the officers involved acted with wanton and
reckless
disregard
of
the
Plaintiff's
condition and violated his constitutional
protection against arrest and detention
without probable cause.
Id. at 4.
To state a claim under 42 U.S.C. § 1983, a plaintiff must
allege that (1) the defendant deprived him of a right secured under
the United States Constitution or federal law, and (2) such
deprivation occurred under color of state law. Salvato v. Miley,
790 F.3d 1286, 1295 (11th Cir. 2015); Bingham v. Thomas, 654 F.3d
1171, 1175 (11th Cir. 2011) (per curiam) (citation omitted);
Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010) (per
curiam) (citations omitted). Additionally, the Eleventh Circuit
requires "'an affirmative causal connection between the official's
acts or omissions and the alleged constitutional deprivation' in §
1983 cases." Rodriguez v. Sec'y, Dep't of Corr., 508 F.3d 611, 625
(11th Cir. 2007) (quoting Zatler v. Wainwright, 802 F.2d 397, 401
(11th Cir. 1986)). In the absence of a federal constitutional
deprivation or violation of a federal right, a plaintiff cannot
sustain a cause of action against the defendant.
To assert a valid Fourth Amendment claim for excessive force
by a law enforcement officer in the course of effectuating an
arrest, a plaintiff must allege that the officer's conduct was
objectively unreasonable. See Graham, 490 U.S. at 395-97. In
determining the reasonableness of the force applied, the Court

10

examines "the fact pattern from the perspective of a reasonable
officer on the scene with knowledge of the attendant circumstances
and facts, and balanc[es] the risk of bodily harm to the suspect
against the gravity of the threat the officer sought to eliminate."
McCullough, 559 F.3d at 1206 (citing Scott v. Harris, 550 U.S. 372,
383 (2007)). The Supreme Court has instructed:
Determining whether the force used to
effect a particular seizure is "reasonable"
under the Fourth Amendment requires a careful
balancing of "'the nature and quality of the
intrusion on the individual's Fourth Amendment
interests'"
against
the
countervailing
governmental interests at stake. Id.,[5] at 8,
105 S.Ct., at 1699, quoting United States v.
Place, 462 U.S. 696, 703, 103 S.Ct. 2637,
2642, 77 L.Ed.2d 110 (1983).
. . . .
[The] 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 he is actively
resisting arrest or attempting to evade arrest
by flight. See Tennessee v. Garner, 471 U.S.,
at 8–9, 105 S.Ct., at 1699–1700 (the question
is "whether the totality of the circumstances
justifie[s]
a
particular
sort
of
...
seizure").
The "reasonableness" of a particular use
of force must be judged from the perspective
of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight. See

5

Tennessee v. Garner, 471 U.S. 1 (1985).
11

Terry v. Ohio,[6] supra, 392 U.S., at 20–22, 88
S.Ct., at 1879–1881.
. . . .
With respect to a claim of excessive force,
the same standard of reasonableness at the
moment applies: "Not every push or shove, even
if it may later seem unnecessary in the peace
of a judge's chambers," . . . violates the
Fourth
Amendment.
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.
[T]he "reasonableness" inquiry in an excessive
force case is an objective one: 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. See Scott v. United States, 436
U.S. 128, 137–139, 98 S.Ct. 1717, 1723–1724,
56 L.Ed.2d 168 (1978); see also Terry v. Ohio,
supra, 392 U.S., at 21, 88 S.Ct., at 1879 (in
analyzing the reasonableness of a particular
search or seizure, "it is imperative that the
facts
be
judged
against
an
objective
standard"). 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. See Scott v. United States,
supra, 436 U.S., at 138, 98 S.Ct., at 1723,
citing United States v. Robinson, 414 U.S.
218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).
Graham, 490 U.S. at 396-97 (emphasis added).

6

Terry v. Ohio, 392 U.S. 1 (1968).
12

Very recently, the Eleventh Circuit Court of Appeals addressed
an arrestee's 42 U.S.C. § 1983 claim alleging that JSO officers
violated his Fourth Amendment rights when they employed excessive
force in effectuating his arrest. See Hinson v. Bias, No. 16-14112,
2019 WL 2482092 (11th Cir. June 14, 2019). In doing so, the court
described the objective reasonableness standard, and applied "the
six Fourth Amendment excessive-force factors" to the facts of the
case. Id. at *11. The court stated, in pertinent part:
The
Fourth
Amendment's
"objective
reasonableness" standard governs our inquiry.
Crenshaw,[7] 556 F.3d at 1290 (citation
omitted). Under this standard, we must
consider "whether the officer's conduct is
objectively reasonable in light of the facts
confronting the officer." Id. (quoting Vinyard
v. Wilson, 311 F.3d 1340, 1347 (11th Cir.
2002)) (internal quotation marks omitted).
When we conduct our analysis, we must do so
"from the perspective of a reasonable officer
on the scene, rather than with the 20/20
vision of hindsight," id. (quoting Graham v.
Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104
L.Ed.2d 443 (1989)) (internal quotation marks
omitted), and we acknowledge that "the right
to make an arrest or investigatory stop
necessarily carries with it the right to use
some degree of physical coercion or threat
thereof to effect it." Graham, 490 U.S. at
396, 109 S.Ct. 1865 (citation omitted).
In applying this standard, we carefully
balance "the nature and quality of the
intrusion on the individual's Fourth Amendment
interests
against
the
countervailing
governmental interests at stake." Crenshaw,
556 F.3d at 1290 (quoting Graham, 490 U.S. at

7

Crenshaw v. Lister, 556 F.3d 1283 (11th Cir. 2009) (per

curiam).
13

396, 109 S.Ct. 1865) (internal quotation marks
omitted). We have explained that "the amount
of force used by an officer in seizing and
arresting a suspect must be reasonably
proportionate to the need for that force.”
Stephens v. DeGiovanni, 852 F.3d 1298, 1324
(11th Cir. 2017) . . . . Factors we account
for in making this assessment include (1) the
severity of the crime; (2) whether the
individual "poses an immediate threat to the
safety of the officers or others," Crenshaw,
556 F.3d at 1290 (quoting Graham, 490 U.S. at
396,
109
S.Ct.
1865)
(quotation
marks
omitted); (3) whether the individual actively
resists or tries to evade arrest by flight,
id.; (4) the need for force to be applied; (5)
the amount of force applied in light of the
nature of the need; and (6) the severity of
the injury.[8]
We have further elaborated on some of
these factors. For example, "[t]he nature and
extent of physical injuries sustained by a
plaintiff" can be relevant in evaluating
"whether the amount and type of force used by
the
arresting
officer
were
excessive."
Stephens, 852 F.3d at 1325 (emphasis omitted).
8

Notably, the court explained:
At times in our caselaw, we have identified
another factor: whether officers applied force
"in good faith or [rather did so] maliciously
and sadistically." Hadley v. Gutierrez, 526
F.3d 1324, 1329 (11th Cir. 2008). As we
explained in Mobley v. Palm Beach County
Sheriff Department, 783 F.3d 1347, 1354 (11th
Cir. 2015), however, that caselaw is not
correct. Because the test we apply asks
whether an officer's actions in using force
were objectively reasonable, the test is not a
subjective one. Id. So we do not consider an
officer's subjective intent in applying force.
Id.

Hinson, 2019 WL 2482092, at *9 n.9.
14

Nevertheless, we have cautioned that "[w]hen
more force is required to effect an arrest
without endangering officer safety, the
suspect will likely suffer more severe injury,
but that alone does not make the use of that
amount of force unreasonable." Mobley v. Palm
Beach Cty. Sheriff Dep't, 783 F.3d 1347, 1356
(11th Cir. 2015) (per curiam).
Id. at *9-10 (emphasis added and footnote omitted).
The first Graham factor, "the severity of the crime at issue,"
weighs in favor of a finding that Detective Thompkins' use of force
was reasonable. 490 U.S. at 396. As Austin's allegations in the AC
make plain, from the beginning of the April 11, 2014 encounter,
Detective Thompkins believed he was dealing with a suspect who was
involved in felonious criminal drug activity. Significantly, the
State charged Austin with sale of cannabis, possession of cocaine,
and possession of less than twenty grams of cannabis for offenses
he committed that day. See https://core.duvalclerk.com, case number
16-2014-CF-003469-AXXX-MA, docket entry 116, Amended Information,
filed September 5, 2014.9 Notably, the crimes of sale of cannabis
and possession of cocaine are third degree felonies in violation of

9

Austin asserts that the State dropped the sale of marijuana
charge. See AC at 6. However, the state court record reflects that
Austin proceeded to a trial by jury on an Amended Information,
which included a charge for sale of cannabis (count one). See
https://core.duvalclerk.com, case number 16-2014-CF-003469-AXXX-MA,
docket entry 116. A jury ultimately found Austin guilty of the
three offenses on September 19, 2014, and the trial court sentenced
him on November 14, 2014, to a term of imprisonment of ten years
for sale of cannabis, a term of imprisonment of five years for
possession of cocaine, and for time served for possession of less
than twenty grams of cannabis. See id., docket entry 217, Judgment.
15

Florida Statutes sections 893.13(1)(a)2, and 893.13(6)(a).10 As he
acknowledges in the AC, Austin has been serving the terms of
incarceration in FDOC custody since December 3, 2014. See AC at 10;
http://www.dc.state.fl.us/offender/Search/detail.aspx (last visited
July 17, 2019).
The second Graham factor, "whether the suspect poses an
immediate threat to the safety of the officers or others," 490 U.S.
at 396, also weighs in favor of a finding that Detective Thompkins'
application of force was reasonable. According to Austin, when
they pointed guns at him, he attempted to run towards them. See AC
at 5. In light of Austin's screaming and unpredictable movement
towards the armed officers, a reasonable officer certainly could
have perceived Austin as an immediate threat to the officers. Thus,
taking Austin's allegations as true, as the Court must, Thompkins
not only had reason to fear that Austin could pose a danger to him,
but that Austin could also threaten the safety of others as well.
The third Graham factor, "whether [the suspect] is actively
resisting arrest or attempting to evade arrest by flight," 490 U.S.
at 396, also weighs in favor of a conclusion that Detective
Thompkins' use of force was not unreasonable. Any reasonable
officer could have construed Austin's running and screaming to be
either an offensive move toward armed officers or an attempt to

10

See 2019 Fla. Sess. Law Serv. Ch. 2019-3 (S.B.4) (amending
Fla. Stat. § 893.13(7)(a)).
16

flee the scene. As such, an officer reasonably could have believed
that a stop tactic was needed to avoid potential harm to himself
and others. As the Supreme Court has explained, "[t]he attempt to
elude capture is a direct challenge to an officer's authority" and
"gives the officer reason to believe that the [suspect] has
something more serious . . . to hide." Sykes v. United States, 564
U.S. 1, 9 (2011), overruled on other grounds, Johnson v. United
States, 135 S. Ct. 2551 (2015).
As such, all three Graham factors - 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
attempting to resist arrest or evade capture by flight - weigh in
Detective Thompkins' favor. The Court, however, does not end its
inquiry there. The Eleventh Circuit also instructs district courts
to consider three other factors: (1) "the need for force to be
applied"; (2) "the amount of force applied in light of the nature
of the need"; and (3) "the severity of the injury." Hinson, 2019 WL
2482092, at *9 (footnote omitted). The Court will refer to these as
the Hinson factors.
The first Hinson factor - the need for the application of
force - is answered by the Graham factors themselves. The fact that
the officers were arresting Austin for committing felonious acts,
and that Detective Thompkins reasonably could have believed that
Austin screaming and running toward armed officers threatened the

17

safety of the officers, and/or that Austin was either fleeing or
resisting an arrest, all suggest that there was a need to stop
Austin's approach towards the officers. Next, the second Hinson
factor - the relationship between the need and the amount of force
used - is perhaps the central question, and it especially weighs in
favor of a conclusion that Detective Thompkins' use of force was
reasonable.

Under

these

circumstances,

a

reasonable

officer

certainly could conclude that the minimal amount of force Thompkins
applied - tripping Austin and causing him to fall to the ground to
stop him from running towards officers - was appropriate.
Finally, the third Hinson factor - the severity of the injury
- is neutral on the facts before the Court. Taking Austin's
assertions as true, as the Court must, Austin re-injured his
shoulder when he fell to the ground. Notably, regardless of how
serious Austin asserts his shoulder injury to be, it was the result
of Detective Thompkins' proportionate use of force against an
unpredictable, moving suspect. Austin states that Thompkins should
have known about his shoulder injury because his surgical scars
were visible, and he shouted "my arm[,] my arm." AC at 5. However,
Austin neither asserts nor suggests that Detective Thompkins knew
the extent of his shoulder injury, but still chose to use a level
of force that would aggravate the preexisting shoulder injury. The
Eleventh Circuit has stated:
We do not use hindsight to judge the acts of
police officers; we look at what they knew (or
18

reasonably should have known) at the time of
the act. What would ordinarily be considered
reasonable force does not become excessive
force when the force aggravates (however
severely) a pre-existing condition the extent
of which was unknown to the officer at the
time. See Silverman,[11] 694 F.2d at 1096–97
(concluding that force used was not, as a
matter of law, excessive even though arrestee
died of heart attack during arrest).
Rodriguez v. Farrell, 280 F.3d 1341, 1352-53 (11th Cir. 2002).
Accordingly, the Court determines that Austin has failed to state
a plausible Fourth Amendment excessive-use-of-force claim against
Detective Thompkins. Accordingly, Thompkins' Motion is due to be
granted.12
B. Fourteenth Amendment Deliberate Indifference Claims
Austin asserts that Defendants Anderson, Valerio, and Barnes
violated his Eighth Amendment right when they were deliberately
indifferent to his medical needs. See AC at 4. He avers that
Defendant Anderson read him his Miranda13 rights and interviewed
him, and Defendant Valerio transported him to the Jail instead of

11

Silverman v. Ballantine, 694 F.2d 1091, 1096–97 (7th Cir.

1982).
12

The Court need not consider the issue of qualified immunity
because it has determined there was no federal constitutional
violation. However, if the Court did address the issue, it would
find that Detective Thompkins is entitled to qualified immunity for
the same reason. See Hinson, 2019 WL 2482092, at *9-12; Garczynski
v. Bradshaw, 573 F.3d 1158, 1170 (11th Cir. 2009) ("No
constitutional violation occurred. Without this element, we need
not
assess
whether
the
alleged
violation
was
clearly
established.").
13

Miranda v. Arizona, 384 U.S. 436 (1966).
19

taking him directly to the emergency room. See AC at 6. He states
that he was in the garage for forty-five minutes, and saw the Jail
intake nurse after he was searched and "dressed out." Id. He avers
that his shoulder bone was "sticking up" and his left shoulder was
swollen when he saw the intake nurse. Id. According to Austin,
Defendant Barnes saw him the following week, and referred him to an
orthopedic doctor, whom he saw on May 2, 2014. Id. at 6-7.
Defendants maintain that Austin fails to state plausible deliberate
indifference claims against them, and that they are entitled to
qualified immunity.
Preliminarily, the Court notes that the Eighth Amendment does
not apply to Austin as a pretrial detainee at the Jail. See Nam
Dang by & through Vina Dang v. Sheriff, Seminole Cty. Fla., 871
F.3d 1272, 1279 (11th Cir. 2017). Nevertheless, the standard for
providing basic human needs and a safe environment to those
incarcerated or in detention is the same under both the Eighth and
Fourteenth Amendments. Id.; see Smith v. Franklin Cty., 762 F.
App'x 885, 889 (11th Cir. 2019) (per curiam); Johnson v. Bessemer,
Ala., City of, 741 F. App'x 694, 699 n.5 (11th Cir. 2018) (per
curiam) (stating that Kingsley v. Hendrickson, 135 S.Ct. 2466
(2015),14 involving a pretrial detainee's excessive force claim,
"does

not

undermine

our

earlier

14

Eighth

Amendment

deliberate

The United States Supreme Court held that "the appropriate
standard for a pretrial detainee's excessive force claim is solely
an objective one." Kingsley, 135 S.Ct. at 2473.
20

indifference precedents"); Goodman v. Kimbrough, 718 F.3d 1325,
1331 n.1 (11th Cir. 2013) ("Regardless of the particular taxonomy
under which we analyze the case, however, the result is the same,
because 'the standards under the Fourteenth Amendment are identical
to those under the Eighth.'") (citation omitted).
The Eleventh Circuit has explained the requirements for a
claim of constitutionally inadequate care:
"The Constitution does not mandate
comfortable prisons, but neither does it
permit inhumane ones . . . ." Farmer, 511 U.S.
at 832, 114 S.Ct. at 1976 (internal quotation
and citation omitted).[15] Thus, in its
prohibition
of
"cruel
and
unusual
punishments," the Eighth Amendment requires
that
prison
officials
provide
humane
conditions of confinement. Id. However, as
noted above, only those conditions which
objectively amount to an "extreme deprivation"
violating contemporary standards of decency
are subject to Eighth Amendment scrutiny.
Hudson, 503 U.S. at 8-9, 112 S.Ct. at 1000.[16]
Furthermore, it is only a prison official's
subjective deliberate indifference to the
substantial risk of serious harm caused by
such conditions that gives rise to an Eighth
Amendment violation. Farmer, 511 U.S. at 828,
114 S.Ct. at 1974 (quotation and citation
omitted); Wilson, 501 U.S. at 303, 111 S.Ct.
at 2327.[17]
Thomas v. Bryant, 614 F.3d 1288, 1306-07 (11th Cir. 2010). "To show
that a prison official acted with deliberate indifference to
serious medical needs, a plaintiff must satisfy both an objective

15

Farmer v. Brennan, 511 U.S. 825 (1994).

16

Hudson v. McMillian, 503 U.S. 1 (1992).

17

Wilson v. Seiter, 501 U.S. 294 (1991).
21

and a subjective inquiry." Brown v. Johnson, 387 F.3d 1344, 1351
(11th Cir. 2004) (quoting Farrow v. West, 320 F.3d 1235, 1243 (11th
Cir. 2003)). First, the plaintiff must satisfy the objective
component by showing that he had a serious medical need. Goebert v.
Lee Cty., 510 F.3d 1312, 1326 (11th Cir. 2007).
"A serious medical need is considered
'one that has been diagnosed by a physician as
mandating treatment or one that is so obvious
that even a lay person would easily recognize
the necessity for a doctor's attention.'" Id.
(citing Hill v. Dekalb Reg'l Youth Det. Ctr.,
40 F.3d 1176, 1187 (11th Cir. 1994)). In
either case, "the medical need must be one
that,
if
left
unattended,
pos[es]
a
substantial risk of serious harm." Id.
(citation and internal quotations marks
omitted).
Brown, 387 F.3d at 1351. Next, the plaintiff must satisfy the
subjective component, which requires the plaintiff to "allege that
the prison official, at a minimum, acted with a state of mind that
constituted deliberate indifference." Richardson v. Johnson, 598
F.3d 734, 737 (11th Cir. 2010) (per curiam) (describing the three
components of deliberate indifference as "(1) subjective knowledge
of a risk of serious harm; (2) disregard of that risk; (3) by
conduct that is more than mere negligence") (citing Farrow, 320
F.3d at 1245); Lane v. Philbin, 835 F.3d 1302, 1308 (11th Cir.
2016) (setting forth the three components) (citing Farrow, 320 F.3d
at 1245).

22

In
Estelle[18],
the
Supreme
Court
established that "deliberate indifference"
entails more than mere negligence. Estelle,
429 U.S. at 106, 97 S.Ct. 285; Farmer, 511
U.S. at 835, 114 S.Ct. 1970. The Supreme Court
clarified
the
"deliberate
indifference"
standard in Farmer by holding that a prison
official
cannot
be
found
deliberately
indifferent under the Eighth Amendment "unless
the official knows of and disregards an
excessive risk to inmate health or safety; the
official must both be aware of facts from
which the inference could be drawn that a
substantial risk of serious harm exists, and
he must also draw the inference." Farmer, 511
U.S. at 837, 114 S.Ct. 1970 (emphasis added).
In interpreting Farmer and Estelle, this Court
explained in McElligott[19] that "deliberate
indifference
has
three
components:
(1)
subjective knowledge of a risk of serious
harm; (2) disregard of that risk; (3) by
conduct that is more than mere negligence."
McElligott, 182 F.3d at 1255; Taylor,[20] 221
F.3d at 1258 (stating that defendant must have
subjective awareness of an "objectively
serious need" and that his response must
constitute
"an
objectively
insufficient
response to that need").
Farrow, 320 F.3d at 1245-46.
According to Austin's own allegations, any delay in the Jail's
provision of medical care was partially due to custodial events
relating to the reading of his Miranda rights, interrogation, and
the taking of photographs as well as his transportation to the
Jail. See AC at 6. Austin states that he "had just taken" Percocet
before his interaction with law enforcement, and therefore was

18

Estelle v. Gamble, 429 U.S. 97 (1976).

19

McElligott v. Foley, 182 F.3d 1248 (11th Cir. 1999).

20

Taylor v. Adams, 221 F.3d 1254 (11th Cir. 2000).
23

concerned that his medication would wear off before the Jail intake
nurses could provide more pain medication. Id. To the extent Austin
avers that Defendants Valerio and Anderson delayed his medical
treatment, he neither asserts any deliberateness on Defendants'
part nor that the delay worsened his physical injuries. ColardoKeen v. Rockdale Cty, Ga., No. 17-13505, 2019 WL 2245922, at *10
(11th Cir. May 24, 2019). Austin asserts that he saw three intake
nurses upon entry to the Jail that same day, and that Barnes
attended to his medical needs the following week. See AC at 6-7.
As to any complaints about Defendant Barnes' negligent acts
and unprofessional conduct in providing allegedly substandard
medical care and failing to send his medical records to the FDOC,
the law is well settled that the Constitution is not implicated by
the negligent acts of corrections officials and medical personnel.
Daniels v. Williams, 474 U.S. 327, 330-31 (1986); Davidson v.
Cannon, 474 U.S. 344, 348 (1986) ("As we held in Daniels, the
protections of the Due Process Clause, whether procedural or
substantive, are just not triggered by lack of due care by prison
officials."). A complaint that a physician has been negligent "in
diagnosing or treating a medical condition does not state a valid
claim of medical mistreatment under the Eighth Amendment." Bingham
v. Thomas, 654 F.3d 1171, 1176 (11th Cir. 2011) (per curiam)
(quotation

marks

allegations

may

mistakes,

and

citation

suggest

negligence,

medical
and

omitted).

malpractice,

medical
24

While

Plaintiff's
"[a]ccidents,

malpractice

are

not

'constitutional

violation[s]

merely

because

the

victim

is

a

prisoner.'" Harris v. Coweta Cty., 21 F.3d 388, 393 (11th Cir.
1994)

(citing

Estelle,

429

U.S.

at

106).

Consequently,

the

allegedly negligent conduct of Barnes about which Austin complains
does not rise to the level of a federal constitutional violation
and provides no basis for relief in this 42 U.S.C. § 1983 action.
Notably,

Austin

states

that

he

needed

stronger

pain

medication, proper physical therapy, and the brace that Dr. Murphy
advised him to wear. The United States Supreme Court has stated:
[T]he question whether an X-ray or additional
diagnostic techniques or forms of treatment is
indicated is a classic example of a matter for
medical judgment. A medical decision not to
order an X-ray, or like measures, does not
represent cruel and unusual punishment. At
most[,] it is medical malpractice, and as such
the proper forum is the state court . . . .
Estelle, 429 U.S. at 107; Adams v. Poag, 61 F.3d 1537, 1545 (11th
Cir. 1995) ("[T]he question of whether [Defendant Barnes] should
have

employed

additional

diagnostic

techniques

or

forms

of

treatment 'is a classic example of a matter for medical judgment'
and therefore not an appropriate basis for grounding liability
under the Eighth Amendment."). "Nor does a simple difference in
medical opinion as to [Austin's] diagnosis or course of treatment
support a claim of cruel and unusual punishment." Harris v.
Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991) (citation omitted).
Moreover, medical treatment violates the Constitution only when it
is "so grossly incompetent, inadequate, or excessive as to shock
25

the conscience or to be intolerable to fundamental fairness."
Rogers, 792 F.2d at 1058 (citation omitted)). Taking Austin's
assertions as true, as the Court must, he fails to state plausible
deliberate

indifference

claims

against

Defendants

Valerio,

Anderson, and Barnes. Thus, Defendants' Motions are due to be
granted as to Austin's Fourteenth Amendment deliberate indifference
claims against them.
C. Fourteenth Amendment Excessive Force Claim
Against Defendant Barnes
Austin asserts that Defendant Barnes directed Jail officers to
take his brace when he refused to surrender it to her. See AC at 9,
¶ 27; Doc. 5-6 at 1, Health Care Grievance Form (stating Dr. Barnes
authorized the use of force), dated October 29, 2014. In the AC,
Austin describes the events leading up to the Jail officers' use of
force against him.
In September I have an appointment at
Shands
Jacksonville.
This
time
it's
a
different orthopedic doctor who gives me
another x-ray but he doesn't have the x-rays
from He[e]kin orthopedic Doctor Murphy like
Dr. Toole did. He looks at the x-rays and says
that Dr. Toole was wrong[.] [I]t's not a
clavicle separation but a re-injury to ... my
A.C.[] He told me that they don't do re-injury
surgeries.
This doctor also told me that I need to
stop wearing the brace before my shoulder
get[s] stiff and I should continue to do the
exercises and he couldn't give me anything for
pain because Jacksonville Sheriff's Office
policy won't allow him to.

26

Then on October 8th 2014 about 9:30 am
and 10:30 am I was called to the jail[']s M-2
clinic[] [t]o see Doctor Barnes[.] [U]pon
entering the M-2 clinic when I got off the
elevator I see more correctional officers
th[a]n usual[.] I see 4 in the control booth
and two in the hallway by Doctor Barnes[']
office[,] and the camera in the [h]all would
prove this.
I walk into Dr. Barnes['] office and sit
down[.] [S]he immediately tells me that the
Doctor at Shands says that I need to take off
the ultra-sling II from He[e]kin orthopedics
and give it to her to be placed in my
property. I told Dr. Barnes that the doctor at
Shands w[as] th[eir] doctor and he can't
authorize me to take off the sling when
He[e]kin orthopedic Dr. Murphy told me to wear
the sling so I don't further injure my
shoulder and she was the one he told that to.
I also told Dr. Barnes when doctor Murphy
tell[s] me to not wear i[t] then I won't[.]
[U]ntil then[,] I'm going back to my dorm.
When I reached the hallways[,] the two
officer[]s that were sitting by her door
w[ere] still there[.] [T]hen Dr. Barnes yelled
to them to take the brace from me[.] [O]ne of
the officer[]s didn't waste any time. He
tackled me to the ground and the other officer
began to twist my arm and fingers while I was
on my back they kicked me in my testicles,
kneed me in my lower back while trying to get
my brace.
AC at 9 (emphasis added). Defendant Barnes maintains that Austin
fails to state a plausible Fourteenth Amendment excessive-force
claim against her because he neither asserts that she used force
against

him

nor

that

she

directed

the

Jail

officers

excessive force against him. See Barnes' Motion at 5.

27

to

use

The Supreme Court has clarified that a pretrial detainee
raising a Fourteenth Amendment excessive-force claim does not need
to prove an officer's subjective intent to harm, but instead "must
show only that the force purposely or knowingly used against him
was objectively unreasonable." Kingsley, 135 S.Ct. at 2473; see
Piazza v. Jefferson Cty., Ala., 923 F.3d 947, 952 (11th Cir. 2019).
Notably, "the Fourteenth Amendment standard has come to resemble
the test that governs excessive-force claims brought by arrestees
under the Fourth Amendment." Piazza, 923 F.3d at 953 (citations
omitted).
According to Austin's own allegations, he refused to comply
with Dr. Barnes' request to surrender the brace because Dr. Murphy
had advised him to wear the brace. See AC at 9. According to
Austin, his preference was to rely on his own doctor's advice, not
that of the Shands doctor, whom he referred to as their doctor. See
id. Taking Austin's assertions as true, Barnes initially sought
Austin's cooperation by asking Austin to surrender the brace based
on the advice of a Shands doctor. When Austin refused to comply and
left the medical office without surrendering the brace, Barnes'
direction to the officers to take the brace was a reasonable
measure to ensure that Austin followed the advice of Jail medical
personnel who had determined that the brace would stiffen his
shoulder.
Under circumstances that were rapidly evolving, the Jail
officers initiated physical contact with Austin for a legitimate
28

medical

purpose

detrimental

to

-

the

taking

Austin's

of

health.

a

brace

Austin

that

neither

could
asserts

prove
that

Defendant Barnes was involved in the actual taking of the brace,
that she directed the officers to use forceful means to retrieve
the brace, nor watched as the officers used excessive force against
him. Thus, taking Austin's allegations as true, as the Court must,
he

fails

to

state

a

plausible

excessive-force

claim

against

Defendant Barnes. Thus, Defendant Barnes' Motion is due to be
granted.21
D. Plaintiff's Request to Amend
Austin requests the Court's permission to amend his AC. See
Responses, Docs. 36 at 9; 42 at 4-5. Preliminarily, the Court notes
that a request for affirmative relief, such as a request for leave
to amend a pleading, is not properly made when simply included in
a response to a motion. See Fed. R. Civ. P. 7(b); see also
Rosenberg v. Gould, 554 F.3d 962, 965 (11th Cir. 2009) ("Where a
request for leave to file an amended complaint simply is imbedded
within an opposition memorandum, the issue has not been raised
properly.") (quoting Posner v. Essex Ins. Co., 178 F.3d 1209, 1222
(11th Cir. 1999)).
Moreover, even if it were proper to include such a request in
the Responses, the request is otherwise due to be denied for

21

For this same reason, Defendant Barnes' assertion of her
right to qualified immunity would provide an alternative basis for
dismissal.
29

failure to comply with Local Rules 3.01(a) and 3.01(g), United
States District Court, Middle District of Florida (Local Rule(s)).
Local Rule 3.01(a) requires a memorandum of legal authority in
support of a request from the Court. See Local Rule 3.01(a). Local
Rule 3.01(g) requires certification that the moving party has
conferred with opposing counsel in a good faith effort to resolve
the issue raised by the motion and advising the Court whether
opposing counsel agrees to the relief requested. See Local Rule
3.01(g). In addition to these deficiencies under the Local Rules,
the request in the Responses also fails to satisfy the requirement
that "[a] motion for leave to amend should either set forth the
substance of the proposed amendment or attach a copy of the
proposed amendment."

Long v. Satz, 181 F.3d 1275, 1279 (11th Cir.

1999); see also McGinley v. Fla. Dep't of Highway Safety and Motor
Vehicles, 438 F. App'x 754, 757 (11th Cir. 2011) (affirming denial
of leave to amend where plaintiff did not set forth the substance
of the proposed amendment); United States ex. rel. Atkins v.
McInteer, 470 F.3d 1350, 1361-62 (11th Cir. 2006) (same). Thus, the
Court will not entertain Austin's request for relief included in
the Responses.

30

Therefore, it is now
ORDERED AND ADJUDGED:
1.
21),

Defendants Valerio and Anderson's Motion to Dismiss (Doc.

Defendant

Thompkins'

Motion

to

Dismiss

(Doc.

34),

and

Defendant Barnes' Motion to Dismiss (Doc. 35) are GRANTED, and
Plaintiff's claims against them are DISMISSED.
2.

The Clerk of Court shall enter judgment dismissing this

case with prejudice.
3.

The Clerk shall terminate any pending motions and close

the case.
DONE AND ORDERED at Jacksonville, Florida, this 18th day of
July, 2019.

sc 7/17
c:
Anthony L. Austin, FDOC #301298
Counsel of Record

31