Scott v. City of Orlando et al

Filing 51

ORDER denying 36 Motion for summary judgment; denying 39 Motion for summary judgment. Signed by Judge Roy B. Dalton, Jr. on 8/9/2016. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

JUNE SCOTT,
Plaintiff,
v.

Case No. 6:15-cv-533-Orl-37TBS

CITY OF ORLANDO; and
OSSIE BATTLE,
Defendants.
ORDER
This cause is before the Court on the following matters:
1.

Plaintiff’s Dispositive Motion for Summary Judgment for Her First Amended
Complaint’s Count I (Excessive Use of Force) Against Defendant Battle and
Defendant Battle’s Affirmative Defenses (Doc. 36), filed April 4, 2016;

2.

Defendant Officer Ossie Battle’s Motion for Summary Judgment and
Incorporated Memorandum of Law (Doc. 39), filed April 4, 2016;

3.

Defendant’s Response to Plaintiff’s Motion for Summary Judgment
(Doc. 44), filed April 19, 2016;

4.

Plaintiff’s Memorandum in Opposition to Defendant Ossie Battle’s Motion
for Summary Judgment (Doc. 45), filed May 2, 2016; and

5.

Plaintiff’s Reply to Defendant’s Response to Plaintiff’s Motion for Summary
Judgment (Doc. 46), filed May 3, 2016.

Upon consideration, the Court concludes that the Motions for Summary Judgment
(Docs. 36, 39) are due to be denied.

BACKGROUND 1
This action arises from the arrest of Plaintiff, June Scott (“Scott”), by Defendant,
Ossie Battle (“Battle”), and Michael Fiorentino-Tyburski (“Fiorentino”), both of whom are
law enforcement officers employed by the City of Orlando Police Department. (See
Doc. 25; Doc. 37-1.) The parties do not dispute whether the arrest was supported by
probable cause. Rather, they dispute whether excessive force was used to effectuate the
arrest.
On the evening of May 25, 2014, Battle and Fiorentino were dispatched to an
apartment complex in response to a caller’s report that a woman threatened him with a
knife, threw the knife over a fence, and ran away from the apartment. (Doc. 37- 2; Doc.
37-1, pp. 9–10; Doc. 37-7, p. 20.) Fiorentino was first to arrive and immediately observed
a female who fit the description of the subject—later identified as Scott—fleeing the
apartment complex on foot. (Doc. 37-1, p. 18.) Fiorentino ordered Scott to stop, and she
complied. (Doc. 37-1, p. 20; Doc. 37-4.) However, Scott “yelled” and “cursed” in protest
to the stop. (Doc. 37-7, p. 26; Doc. 37-1, p. 17; Doc. 37-4; Doc. 38, pp. 66–67.) Officer
Battle then arrived at the scene and handcuffed Scott. (Doc. 37-7, pp. 24–25; Doc. 37-9.)
While Battle was handcuffing her, Scott continued to vehemently protest and
curse. (Doc. 38, pp. 29, 69; Doc. 37-7, p. 30; Doc. 37-9; Doc. 37-4). After she was
handcuffed, Scott “jerked” her arms and pulled away from Battle’s grasp. (Doc. 37-7,
pp. 29–30; Doc. 38, p. 29.) Battle then “took her to the ground.” (Doc. 37-7; Doc. 39.) The

1

Unless noted otherwise, the facts included in this section are undisputed and
have been gleaned from the parties’ filings. Such facts are recited solely for the purpose
of resolving the pending motions and should not be construed as factual findings of the
Court.

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parties present widely divergent accounts of the nature and force of the “take down,” as
well as the physical injury that it allegedly caused. According to Scott’s filings, Battle
“threw” and “slammed” her to the ground with such force that her knee was broken.
(Doc. 38, pp. 30, 56.) Conversely, Battle’s filings show that he used a “leg sweep”
maneuver and merely placed Scott’s “bottom” on the ground while holding her arms.
(Doc. 37-7, pp. 30–31; Doc. 37-9.)
On April 1, 2015, Scott filed this action pursuant to 42 U.S.C. § 1983, asserting
claims against Battle, Fiorentino, and the City of Orlando (“the City”) for allegedly
violating her rights under the Fourth and Fourteenth Amendments of the U.S.
Constitution. Her original Complaint asserted that: (1) Battle was liable for using
unreasonable and excessive force; (2) Fiorentino was liable for failing to protect Scott
from such force; and (3) the City was liable pursuant to Monell v. Department of Social
Services, 436 U.S. 658 (1978) to the extent that the City’s policies and procedures caused
the alleged violation of her rights. (Doc. 1, ¶¶ 42–48.)
On Defendants’ motion, the Court dismissed without prejudice the claims against
Fiorentino and the City. (Doc. 24.) Scott later filed the operative Amended Complaint,
which omitted Fiorentino as a defendant and added greater detail to the claim against the
City. (Doc. 25.) In March 2016, the parties stipulated to a voluntary dismissal of Scott’s
case against the City. 2 (Doc. 35.) Accordingly, only Scott’s excessive force claim against
Battle remains, and it is the subject of the competing motions for summary judgment now
before the Court. For the reasons stated below, the motions are due to be denied.
2

The Notice of Voluntary Dismissal (Doc. 35) is self-executing pursuant to Federal Rule
of Civil Procedure 41(a)(1)(A)(ii). It follows that the claims against the City are dismissed
without prejudice.

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STANDARDS
Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and that the movant is entitled to judgment as a
matter of law.” Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A
genuine dispute of material fact exists if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
To defeat a motion for summary judgment, the non-movant must “go beyond the
pleadings, and present affirmative evidence to show that a genuine issue of material fact
exists.” Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006) (citation omitted). The Court
must view the evidence and all reasonable inferences drawn from the evidence in the
light most favorable to the non-movant. See Battle v. Bd. of Regents, 468 F.3d 755, 759
(11th Cir. 2006). However, “[a] court need not permit a case to go to a jury . . . when the
inferences that are drawn from the evidence, and upon which the non-movant relies, are
‘implausible.’” Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 743 (11th Cir. 1996).
The same standard applies where, as here, the parties submit competing motions
for summary judgment, and “the denial of one does not require the grant of another.” See
Perez-Santiago v. Volusia Cty., No. 6:08-cv-1868-Orl-28KRS, 2010 WL 917872, at *2
(M.D. Fla. Mar. 11, 2010).
DISCUSSION
I.

Battle’s Motion for Summary Judgment
Battle moves for summary judgment on the ground that he is entitled to qualified

immunity from Scott’s excessive force claim. (Doc. 39.) Qualified immunity protects

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government officials “from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
In order to receive such immunity, “the public official must first prove that he was
acting within the scope of his discretionary authority when the allegedly wrongful acts
occurred.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002). “Once the defendant
establishes that he was acting within his discretionary authority, the burden shifts to the
plaintiff to show that qualified immunity is not appropriate.” Id.; see also Martinez v. City
of Pembroke Pines, No. 15-12239, 2016 WL 1593673, at *4 (11th Cir. Apr. 21, 2016). To
do so, the plaintiff must present facts which reveal the violation of a constitutional right
that was “clearly established” at the time of the conduct at issue. See Pearson v. Callahan,
555 U.S. 223, 232 (2009).
1.

Violation of a Constitutional Right

It is undisputed that Battle was acting within his discretionary authority during the
arrest. (See Doc. 36, p. 16.) Thus, the burden shifts to Scott to show that Battle violated
a constitutional right that was “clearly established” at the time of the arrest. See Terrell v.
Smith, 668 F.2d 1244, 1250 (11th Cir. 2012); see also Plumhoff v. Rickard,
134 S.Ct. 2012, 2023 (2014).
Scott asserts that Battle violated her Fourth Amendment right to be free from
excessive force during an arrest. Although the right to be free from excessive force is
firmly established, the contours of excessive force vary with the unique facts and
circumstances of each particular case. See Lee, 284 F.3d at 1197–98.
“Objective reasonableness”—the standard under which excessive force claims are

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analyzed—helps courts distinguish force that is constitutionally sound from that which is
not. See Plumhoff, 134 S.Ct. at 2020 (2014); see also Salvato v. Miley, 790 F.3d 1286,
1293 (11th Cir. 2015). Broadly stated, this standard balances the amount of force against
the need for its use. See Graham v. Connor, 490 U.S. 386, 396–97 (1989).
In evaluating the objective reasonableness of the use and extent of force applied
in a given situation, courts must consider the totality of the circumstances and view them
from the perspective of a reasonable officer at the scene. See Martinez, 2016 WL
1593673 at *4 (“Reasonableness in this context depends on all the circumstances
relevant to an officer's decision to use force and the amount of force used.”) The analysis
calls attention to the following factors set forth in Graham v. Connor: (1) the severity of
the crime; (2) the quality and nature of any immediate threat the subject poses to the
safety of officers or others; and (3) the subject’s active resistance or attempts to evade
arrest, if any. See 490 U.S. at 396–97. The United States Court of Appeals for the
Eleventh Circuit has also considered the extent of injury inflicted by the force to determine
its excessiveness. See Leslie v. Ingram, 786 F. 2d 1533, 1536 (11th Cir. 1986).
Here, Scott places little emphasis on the severity of the crime factor. 3 Rather, she
presents argument and record evidence showing that she did not pose an immediate
threat or flight risk, and did not attempt to resist. For instance, Scott points to evidence—
including Battle’s own deposition testimony—showing that she was handcuffed and
secured before the take-down. (Doc. 37-7, p. 25; Doc. 38, pp. 29–30.) Scott also
underscores evidence suggesting that Battle physically “outclassed” her, such that he
3

Notably, Scott expressly concedes in her summary judgment motion that Battle
“had the right to handcuff Plaintiff for his, the public’s, and Plaintiff Scott’s safety.”
(Doc. 36, p. 4.)

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could handily control Scott and could not reasonably perceive her as a threat. 4 (Doc. 36,
pp. 2, 5; Doc. 37-7, pp. 4–5, 15, 17.) Further, she highlights testimony and records
demonstrating Battle’s acknowledgment that Scott dispensed with the knife before he
approached her. (Doc. 37-7, p. 26; Doc. 37-9; Doc. 37-2.) Finally, Scott presents record
evidence showing that Battle “threw” her to the ground with such force that he caused
significant injury to her knee—specifically, a depression fracture of her left tibial plateau—
and rendered Scott unable to walk for a period of months after the incident. (Doc. 36, p.
2; Doc. 37-1, pp. 18, 27–28; Doc. 37-7, pp. 39–40; Doc. 38, pp. 30–31; Doc. 45-8.)
On the basis of this record, Scott maintains that Battle’s use of force was
unreasonable and therefore violated her Fourth Amendment right to be free from
excessive force. The Court agrees, as the record viewed most favorably to Scott reflects
that the force used on her was not reasonably proportionate to its need, if any. Doubtless,
the severity of the crime weighs against Scott, and she concedes that there was sufficient
reason to handcuff and detain her. However, the remaining Graham factors militate in
Scott’s favor.
First, there is record evidence supporting Scott’s contention that she did not pose
a threat at the time of the “take down”—the point at which she was handcuffed. Beyond
the aforementioned evidence, the absence of any evidence indicating that Scott was
frisked or “pat down” before or after she was handcuffed bolsters the conclusion that she
did not present an immediate threat. 5 Further, the record supports Scott’s contention that
4

Battle, who is approximately 6’1” and weighs 250 pounds, testified that he bench
presses 320 pounds. (Doc. 37-7, pp. 4-5.) At the very least, this much supports a
reasonable inference that he was capable of physically dominating Scott, who is 5’4” and
weighed approximately 110 pounds at the time of the incident. (Doc. 36, p. 2.)
5 When asked at his deposition if he or anyone else frisked Scott, Battle testified

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she neither resisted arrest nor attempted to flee when “thrown” to the ground. Even
portions of Battle’s deposition testimony call into question whether the decision to put
Scott on the ground was animated by active resistance or risk of flight. At one point, Battle
simply testifies that Scott was taken down because she would not comply with his order
to sit down. (See Doc. 37-7, p. 32.) Finally, a juror could reasonably glean from Scott’s
filings a causal connection between the “take down” and the significant injury to her knee.
In sum, the record before the Court—when viewed in a light most favorable to Scott
for purposes of evaluating Battle’s summary judgment motion—reveals that the force
used by Battle was unnecessary and disproportionate. Although Battle’s filings suggest a
contrary view, they do not remove all genuine issues of material fact as to the need,
nature, and amount of force he applied. Accordingly, the Court concludes that Scott has
fairly carried her burden in demonstrating a violation of her constitutional right to be free
from excessive force.
2.

Clearly Established Right

Despite evidence showing his violation of a constitutional right, Battle is entitled to
qualified immunity unless the right was “clearly established” at the time of Scott’s arrest.
To meet this threshold, the right must be “sufficiently definite” such that a reasonable
officer would have fair warning that the challenged conduct amounts to its violation. See
Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014). An officer is said to have “fair warning” if
the unlawfulness of the conduct is apparent in case law at the time of the event, or the
conduct “lies so obviously at the very core of what the Fourth Amendment prohibits that

that he could not remember. (Doc. 37-7, p. 60.) The Court is unable to find any evidence
in the record showing that Scott was, in fact, frisked.

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the unlawfulness . . . was readily apparent . . . notwithstanding the lack of fact-specific
case law.” Vinyard v. Wilson, 311 F.3d 1340, 1355 (11th Cir. 2002) (citing Lee,
284 F.3d at 1199). These are known as the “state of the law” and “obvious clarity”
standards. See Vinyard, 311 F.3d at 1355.
Slamming a handcuffed arrestee to the ground under the facts and circumstances
presented by Scott arguably fits the obvious clarity standard. In any event, legal precedent
at the time of the arrest provided fair warning that the conduct was unlawful and violated
Scott’s right to be free from excessive force. As the Court pointed out in its Order of
dismissal (Doc. 24), Lee v. Ferraro, 284 F.3d 1188 (11th Cir. 2002) and Slicker v.
Jackson, 215 F.3d 1225 (11th Cir. 2000) are just two cases which signaled the
constitutional infirmity of such conduct as of May 25, 2014—the date of the arrest.
In Lee, as in this action, the plaintiff was a female arrestee whose physique was
slight in comparison to that of the male officer. 284 F.3d at 1191. In effectuating the
arrest—following a traffic stop—the officer “grabbed” and twisted the plaintiff’s wrists while
handcuffing her. Id. After she was handcuffed and “secured,” the officer pushed the
plaintiff and slammed her head down on the trunk of her vehicle. Id. Although she did not
sustain head injuries as a result, the plaintiff suffered nerve compression injuries in one
wrist. Id. at 1192. On these facts, the court found it “. . . abundantly clear . . . that [the
officer] used force that was plainly excessive, wholly unnecessary, and, indeed, grossly
disproportionate under Graham,” and the denial of qualified immunity was therefore
appropriate. Id. at 1198.
Similarly, in Slicker, the Eleventh Circuit found it appropriate to deny summary
judgment to police officers on the basis of qualified immunity. 215 F.3d at 1232. There,

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officers kicked a handcuffed arrestee and at least one of them “slammed” his head on the
ground. Id. at 1227–28. Noting record evidence which showed that the arrestee “was
handcuffed and did not resist, attempt to flee, or struggle with the officers in any way,” the
court determined that a fact finder could reasonably conclude that the officers used
excessive force. Id. at 1233.
The cases relied upon by Battle to support qualified immunity are clearly
distinguishable. Indeed, some actually undermine his position. For instance, although the
district court entered summary judgment favorable to law enforcement officers on
excessive force claims in Fernandez v. City of Cooper, 207 F. Supp. 2d 1371 (S.D. Fla.
2002), the court carefully catalogued facts that are absent here. Importantly, the
undisputed evidence in Fernandez established that the arrestee, a 6’4” 225-pound man,
continued to forcefully resist arrest—both before and after he was handcuffed. Id. at
1373–74. It took three officers to restrain the subject and put him on the ground. Id. at
1375. Further, but for one officer’s knee being pressed against the subject’s back when
he was on the ground, the record demonstrated restraint by the officers and revealed
virtually no use of force after the subject was placed in handcuffs and secured. Id.
Barfield v. Rambosk, 641 F.App’x. 845 (11th Cir. 2015) is also unavailing. There,
the Eleventh Circuit upheld summary judgment in favor of law enforcement officers on the
basis of qualified immunity, but did so on a factual record quite distinct from the one in
this action. In Barfield, the subject arrestee was “a large man” who appeared to be under
the influence of alcohol or a controlled substance at the time of the arrest. Id. at 846. The
record also revealed that the subject actively and continuously resisted arrest. Id. at 846–
48. Finally, the conduct which formed the basis of the excessive force claims occurred

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before the subject was handcuffed. Id.
Battle fares no better under Garrett v. Athens, 378 F.3d 1274 (11th Cir. 2004).
There, the Eleventh Circuit reversed the district court’s denial of summary judgment in
favor of the police officer defendants. However, that case involved a high speed chase
covering some thirty miles. Id. at 1275–76. A protracted struggle then ensued, and the
arrestee fled on foot after unsuccessful attempts to wrestle away an officer’s firearm. Id.
at 1277. The arrestee continued to forcefully resist after he was handcuffed and caused
injury to two officers. Id. at 1277–78. Eventually, the officers fettered the arrestee by tying
his wrists to his ankles. Id. at 1278. It was the act of “fettering”—which allegedly led to the
arrestee’s death by positional asphyxiation—which formed the basis of his mother’s
excessive force claims against the officers. Id. In light of the record evidence, the circuit
court concluded that the lower court erred because the facts did not establish a
constitutional violation, and even if they did, qualified immunity would apply because the
state of the law pertaining to positional asphyxia was unsettled. Id. at 1280–81. In short,
the record in Garrett was strikingly dissimilar to the one in this action.
Because the state of the law at the time of Scott’s arrest would have placed a
reasonable officer on notice that Battle’s conduct—as presented by Scott’s filings—was
unlawful, the Court concludes that qualified immunity is inappropriate in this case, and
Battle’s motion for summary judgment is due to be denied. 6
II.

Scott’s Motion for Summary Judgment

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The Court’s conclusion does not mean that Battle cannot prove his entitlement
to qualified immunity at trial. It simply means the evidence before the Court is sufficient
to warrant a trial on Battle’s entitlement to qualified immunity. See Johnson v. Jones, 515
U.S. 304, 313 (1995).

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The Court now turns to Scott’s motion for summary judgment on her excessive
force claim. Doing so, it views the record in a light most favorable to Battle and concludes
that Scott’s motion is also due to be denied.
In essence, Scott maintains that she is entitled to summary judgment because the
Graham factors weigh in her favor. (Doc. 36, pp. 4-10.) She also requests the Court to
“rule Defendant Battle used deadly force … as defined by Fla. Stat. § 776.06.” (Id. at 10.)
Finally, Scott requests the entry of judgment on numerous affirmative defenses raised by
Battle. 7 (Id. at 11-22.)
As an initial matter, the Court finds that Scott’s motion is properly determined by
applying the Graham factors. The question of whether Battle’s alleged conduct constitutes
“deadly force” under § 776.06 of the Florida Statutes cannot be conclusively decided on
this record, and its answer is not determinative of the single constitutional claim raised in
this action. The challenged “affirmative defenses” are likewise impertinent—at least at
this stage of the proceedings. As Battle points out in his response to Scott’s motion for
summary judgment, several of the so-called affirmative defenses are “subsumed” by the
qualified immunity defense. (Doc. 44, pp. 10–16.) Moreover, Battle expressly withdraws
three of the defenses, and asserts that the remaining defenses are not determinative of
the excessive force claim. 8 The Court agrees.

7

The defenses include: (1) failure to mitigate damages; (2) lawful exercise of law
enforcement officer’s rights; (3) existence of probable cause; (4) justifiable use of force
under section 776.05 of the Florida Statutes; (5) qualified immunity; (6) conduct taken in
good faith; (7) failure to satisfy statutory conditions precedent; (8) set off; (9) failure to
state a claim; (10) lawful exercise of law enforcement duties; and (11) application of
Florida’s “statutory caps” on damages under section 768.28 of the Florida Statutes.
8 Battle withdraws the lawful exercise of law enforcement duties, statutory
conditions precedent, and good faith defenses. (Doc. 44, pp. 10, 13, 14.)

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Turning to the Graham analysis, the “severity of the crime” factor tilts the scales
decidedly against Scott. The record evidence firmly establishes that, before he even
approached Scott, Battle was advised that she “just pulled a knife” and reportedly fled
from the scene. (Doc. 37-2; Doc. 37-7, p. 25.) Battle testified that it was proper to place
Scott in handcuffs under these circumstances alone, and there is nothing in the record to
refute this. (Doc. 37-7, p. 25.)
The remaining factors are less conclusive. As to the “presentation of threat” factor,
the record clearly demonstrates that Scott was boisterous, irate, and somewhat
belligerent both before and after she was handcuffed. (Doc. 37-7, p. 27; Doc. 38, pp. 55,
66–67.) Further, having been advised of Scott’s threatening conduct—including the
brandishing of a knife minutes earlier—Battle testified to concerns that she might have
another weapon. (Doc. 37-7, p. 26.) The record also shows some degree of resistance
by Scott after she was handcuffed. (Doc. 37-7, pp. 29, 45; Doc. 38, pp. 69–71). Finally,
Battle testified that Scott somehow removed the handcuffs after she was on the ground.
(Doc. 37-7, p. 38.) This tends to illustrate continued resistance on Scott’s part, and also
raises questions concerning Scott’s physical condition after she was taken to the ground.
Collectively, these facts—viewed in a light most favorable to Battle—demonstrate
that it was objectively reasonable for Battle to use force to physically secure and ground
a handcuffed arrestee. At the very least, the record presented by Battle raises genuine
issues of material fact that are fatal to Scott’s motion.
In sum, the Parties’ competing motions raise factual disputes which cannot be
resolved by the Court on summary judgment. Accordingly, Scott’s excessive force claim
against Battle will proceed to trial. Should liability be proven, the jury will also consider

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issues of causation and damages arising from Scott’s purported injury.

CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED that:
1.

Plaintiff’s Dispositive Motion for Summary Judgment for Her First Amended
Complaint’s Count I (Excessive Use of Force) Against Defendant Battle and
Defendant Battle’s Affirmative Defenses (Doc. 36) is DENIED; and

2.

Defendant Officer Ossie Battle’s Motion for Summary Judgment and
Incorporated Memorandum of Law (Doc. 39) is DENIED.

DONE AND ORDERED in Chambers in Orlando, Florida, on August 9, 2016.

Copies:
Counsel of Record

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