Kent v. Vargas et al

Filing 73

ORDER denying 60 Motion for summary judgment. Signed by Judge Roy B. Dalton, Jr. on 5/30/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
JERMAINE KENT,
Plaintiff,
v.

Case No. 6:15-cv-880-Orl-37TBS

ZACHARY BROWN,
Defendant.
_____________________________________
ORDER
This cause is before the Court on the following:
1.

Motion for Summary Judgment By Defendant Brown (Doc. 60), filed
February 28, 2017;

2.

Plaintiff’s Motion and Memorandum of Law in Opposition to Defendant’s
Motion for Summary Judgment (Doc. 71), filed April 21, 2017; and

3.

Reply Memorandum of Law by Defendant Brown (Doc. 72), filed April 26,
2017.
I.

BACKGROUND 1

The events leading to this action arose late in the evening of August 22, 2011, when

The following facts reflect the Plaintiff’s “best case”—that is, the version of facts
that the Court must consider at this stage of the proceedings. See Robinson v. Arrugueta,
415 F.3d 1252, 1257 (11th Cir. 2005); see also Walker v. City of Riviera Beach, 212 Fed. App’x
835, 837 (11th Cir. 2006).
1

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two deputies employed with the Brevard County Sheriff’s Office—Juan Vargas
(“Vargas”) and Zachary Brown (“Brown”)—spotted Plaintiff Jermaine Kent (“Kent”)
riding a dirt bike while holding onto the driver’s window of a moving vehicle
(“Vehicle”). (Id. ¶ 5; Doc. 1, ¶ 7.) Without triggering the lights or sirens of their
unmarked and darkly tinted car (“Car”), Vargas and Brown drove through a stop sign
and begin to approach Kent at a high rate of speed. (Doc. 69-1, p. 1; Doc. 67, pp. 22, 26.)
Unaware of who was in the Car, Kent believed he was about to be robbed, so he dropped
his bike and ran. (Id. at 22, 25.)
Exiting the Car, Brown pursued Kent on foot. (Id. at 27.) Once Plaintiff realized
that he was being chased by law enforcement, he immediately stopped, fell to his knees,
put his hands in the air, and was completely compliant. 2 (Doc. 69-1, p. 1.) Despite Kent’s
compliance, Brown tackled him, causing Kent to fall to the ground with his face situated
on a mound of fire ants. (Id.) Once Kent informed Brown that his face was on an ant pile
Brown responded by telling him to, “put [his] fucking face in the ant moun[d].” (Id.)
Brown then “purposefully” held Kent’s face in the ant mound, causing Kent to suffer
hundreds of ant bites to his face, ears, neck, chest and eyes. (Id.; Doc. 60-5.) Both Vargas
and Brown subsequently tased Kent as he lay facedown. (Doc. 69-1, pp. 1–2;

The Court notes that Kent’s deposition testimony sometimes differs from the
statements contained in his affidavit. For example, in his affidavit, Kent alleges that he
stopped running immediately upon realizing that law enforcement was pursing him.
(Doc. 69-1, p. 1.) During his deposition, however, Kent testified that while he initially
believe he was about to be robbed, “[w]hen the [police] lights hit, [he] knew it was the
police; but [he] kept running, and [he] ran behind [a] house” before surrendering. (Doc.
67, p. 22.)
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Doc. 67, p. 28.) Kent was not resisting, threatening, fighting, or engaging in any other
unlawful behavior when Brown held his head down in the ant mound or when he was
tased. (Id. at 22; Doc. 69-1, p. 1.)
Based on this incident, Kent was arrested and charged with resisting an
officer without violence (“Resisting Charge”) in violation of Florida Statute § 843.02,
a first degree misdemeanor. (Doc. 60-4.) He entered a plea of nolo contendere and
was adjudicated guilty on November 8, 2013. (Doc. 60-4.) Kent subsequently brought
this 42 U.S.C. § 1983 excessive force action against Vargas and Brown in their
individual capacities. (Doc. 1 (“Complaint”).)
Kent served the Complaint on Brown on June 22, 2015 (see Doc. 15), but failed to
timely serve Vargas (see Docs. 30, 31). The Court, therefore, dismissed this case as to
Vargas pursuant to Local Rule 3.10, for lack of prosecution. (Id.) Brown, the only
remaining defendant, now moves for summary judgment, invoking defenses under the
doctrine of qualified immunity and Heck v. Humphrey, 512 U.S. 477 (1994).
(Doc. 60 (“Motion”).) Kent has responded (Doc. 71), and Brown has replied. (Doc. 72.)
This matter is now ripe for the Court’s adjudication.
II.
A.

LEGAL STANDARDS

Summary Judgment

A party is entitled to summary judgment “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law.”

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Fed. R. Civ. P. 56(c); see also, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In
resolving motions for summary judgment, courts must not make credibility assessments
or weigh conflicting evidence. See Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 919
(11th Cir. 1993). Rather, courts must: (1) view the record evidence in the light most
favorable to the non-moving party; and (2) draw all reasonable inferences in favor of the
non-moving party. See White v. Pauly, 137 S. Ct. 548, 550 (2017). If a reasonable fact finder
could draw more than one inference from the facts and find that at least one of those
inferences creates an issue of material fact, the court must not grant summary judgment.
See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
B.

Qualified Immunity

“Qualified immunity shields government officials from liability for civil damages
for torts committed while performing discretionary duties unless their conduct violates
a clearly established statutory or constitutional right.” Hadley v. Gutierrez, 526 F.3d 1324,
1329 (11th Cir. 2008). “[T]o receive qualified 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 Terrell v. Smith, 668 F.2d 1244, 1250 (11th Cir. 2012). To do so, the
plaintiff must make a two-part showing. First, he must demonstrate that the facts of the
case evidence a violation of a constitutional right. See Pearson v. Callahan, 555 U.S. 223, 232

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(2009). Second, he must demonstrate that the constitutional right was “clearly
established” at the time of the putative misconduct. Id.
A constitutional right is “clearly established” if precedent places the
“constitutional question beyond debate.” See Mullenix v. Luna, 136 S. Ct. 305, 308 (2015).
The pertinent precedent must be “particularized” to the facts of the case.
See Pauly, 137 S. Ct. at 552; see also Brosseau v. Haugen, 543 U.S. 194, 599–600 (2004)
(emphasizing that the qualified immunity inquiry must relate to specific facts—not
general propositions). This is not to say that an official action is protected by qualified
immunity unless the very action in question has previously been held unlawful, but it is
to say that in the light of pre-existing law, the unlawfulness must be apparent. Hope v.
Pelzer, 536 U.S. 730, 739–741 (2002) (finding that officials can still be on notice that their
conduct violates established law even in “novel factual circumstances”).
Following these principles, the U.S. Court of Appeals for the Eleventh Circuit has
held that to prove that the law was clearly established, a plaintiff may:
point to either (1) earlier case law from the Supreme Court,
[the Eleventh Circuit], or the highest court of the pertinent
state that is materially similar to the current case and
therefore provided clear notice of the violation[,] or (2)
general rules of law from a federal constitutional or statutory
provision or earlier case law that applied with ‘obvious
clarity’ to the circumstances, establishing clearly the
unlawfulness of the [d]efendant[’]s conduct.
Long v. Slaton, 508 F.3d 576, 584 (11th Cir. 2007) (citation omitted).
III.

ANALYSIS

In his Motion, Brown first argues that Kent’s excessive force claim is barred under
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the doctrine of qualified immunity. (Doc. 60, pp. 5–11.) He then argues that Kent’s claim
is barred by Heck because, if proven, it would necessarily undermine the validity of his
plea and conviction. The Court will addresses each of these arguments in turn below.
(Id. at 11–12.)
A.

Qualified Immunity

Kent does not dispute that Brown was acting within the scope of his discretionary
authority at the time of his arrest. (See generally Doc. 71.) The Court, therefore, considers
whether: (1) the officers violated Kent’s Fourth Amendment rights to be free from
excessive force, and (2) whether those rights were clearly established.
A police officer’s use of force violates the Fourth Amendment if it is objectively
unreasonable in light of the circumstances. Graham v. Connor, 490 U.S. 386, 395–97 (1989).
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.
Long, 508 F.3d at 579–580. Whether the force is reasonable hinges on the facts and
circumstances of each 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.” Id. at 396.
Kent avers that Brown violated his clearly established Fourth Amendment right to
be free from the use of excessive force by: (1) deliberately and maliciously exposing him
to fire ants during his arrest; and (2) tasing him while he lay on the ground in a
non-threatening, non-resistant manner. (Doc. 1, ¶¶ 22–31). With respect to Kent’s

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exposure to fire ants, Brown contends that he is entitled to summary judgment because
there is no evidence indicating that he: (1) deliberately and unnecessarily expos[ed]
[Kent] to fire ants;” or (2) “intentionally, maliciously and sadistically put or kept Plaintiff
in a fire ant pile for an inappropriate period of time.” (Doc. 60, p. 9.) Brown further argues
that there is “no credible evidence that the length of time required to apprehend and
secure [Kent] was unreasonable or unnecessarily drawn out.” (Id. at 9–10.)
With respect to Kent’s tasing, Brown argues that he is entitled to qualified
immunity because there is no evidence that he tased Kent. (Doc. 60, p. 10.) Brown also
argues that Kent’s testimony “clearly implies that he was trying to lift his head up during
the handcuffing process,” and Kent’s actions could, “from an objectively reasonable
standpoint,” be viewed as continued resistance. (Doc. 60, p. 10.)
The Court rejects Brown’s arguments, as they rest on facts viewed in the light most
favorable to Brown—not Kent. Under Kent’s version of the facts: (1) he initially fled from
Brown, but eventually surrendered by stopping, falling to his knees, and putting his
hands in the air (Doc. 69-1, p. 1); (2) he posed no potential danger, did not attempt to flee,
and did not actively resist (id); despite Kent’s compliance, Brown tackled him, causing
him to fall to the ground with his face positioned on a mound of fire ants (id); (4) Kent
informed Brown that his face was on the ant mound, at which time, Brown intentionally
held Kent’s face in the ant mound and uttered expletives (id); (5) Kent suffered hundreds
of ant bites to his face, ears, neck, chest and eyes (id); and (6) Brown subsequently tased
Kent without any justification (id. at 2; Doc. 67, p. 28).

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Based on these facts, the Court finds, for the purpose of resolving the Motion, that
Brown’s actions violated Kent’s Fourth Amendment right to be free from excessive force. 3
Further, a review of the Eleventh Circuit’s pertinent case law reveals that a reasonable
officer in Brown’s position would have been on notice that holding Kent’s face down in
a pile of fire ants and tasing him while he was compliant would constitute excessive force.
Saunders v. Duke, for example, establishes that applying “gratuitous force” to a nonresistant and non-threatening suspect after he has surrendered is objectively
unreasonable under the Fourth Amendment. See 766 F.3d 1262, 1268, 1270
(11th Cir. 2014).
Specifically, in Saunders, the plaintiff met with individuals at a gas station and sold
oxycodone pills to an undercover officer and a confidential informant. Id. at 1265. After
the sale was completed, state law enforcement agents surrounded the plaintiff with their
weapons drawn and ordered him to place his hands on the windshield of the car and not
move. Id. Saunders “immediately complied” with their commands. Id. An agent then
pulled Saunders onto the hot pavement, handcuffed him, and left him lying flat on his
stomach. Id. While prone, Saunders informed the agents “that he was ‘getting burnt’” and
attempted to hold “his face up off the hot pavement.” Id. Although Saunders posed no
threat to anyone, offered no resistance, and made no attempt to flee, one of the agents

See Perry v. Post, No. CIV 04-2842-PHX-JAT, 2006 WL 3333092, at *4–5
(D. Ariz. Nov. 16, 2006) (concluding that it was objectively unreasonable and a violation
of the Fourth Amendment for officers to drag a compliant arrestee to an “ant hill and
then taunt[] [him] about being bitten while he lay there”).
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“slammed his head into the pavement with extreme force.” Id. at 1265–66. Saunders
“suffered lacerations, injuries to his teeth and jaw, damage to his left eardrum, and
emotional distress due to his head striking the pavement.” Id.
Saunders subsequently filed a § 1983 action against the defendant agents, alleging
excessive force in violation of the Fourth Amendment. Id. at 1265. The district court
granted the defendant agents’ motion to dismiss based on qualified immunity,
reasoning that the use that “use of force during an arrest is not clearly unlawful if an
arresting officer is faced with an uncooperative suspect or if an officer perceives
resistance in a volatile situation.” Id. at 1266. The district court further reasoned that,
when Saunders lifted his head off the pavement, a reasonable officer in the defendant
agents’ position could have believed that Saunders was resisting arrest thereby
justifying the use of force to return his head to the pavement. Id. at 1267.
In the appeal followed, the Eleventh Circuit reversed the district court’s ruling and
remanded the case, finding that the defendant agents were not entitled to qualified
immunity. Id. at 1270. In so holding, the Eleventh Circuit reasoned that the district court
failed to read the allegations of the complaint in the light most favorable to Saunders,
who alleged that “he did not resist and did not do anything to threaten the agents or
anyone else.” Id. at 1269. The Eleventh Circuit held that “even if the complaint could be
read to allege that . . . Saunders disobeyed an order by lifting his head off the hot
pavement, that minor transgression does not mean that the force allegedly used was a
constitutionally permissible response.” Id. In conclusion, the Eleventh Circuit stated that

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Saunders’s allegations, if true, demonstrated that the defendant agents’ force “was
unnecessary, disproportionate, and constitutionally excessive.” Id. at 1268.
In addition to Saunders, several other Eleventh Circuit cases echo the broad
constitutional principle that applying gratuitous force to a suspect who has surrendered
and no longer poses a threat is objectively unreasonable and violates the Fourth
Amendment. See, e.g., Hadley v. Gutierrez, 526 F.3d 1324, 1333–34 (11th Cir. 2008)
(concluding that an officer used excessive force when he punched an individual in the
stomach while the individual was handcuffed and not struggling or resisting); Lee v.
Ferraro, 284 F.3d 1188 (11th Cir. 2002) (slamming a non-resisting criminal suspect's head
onto hood of a car constituted excessive force); Slicker v. Jackson, 215 F.3d 1225, 1233
(11th Cir. 2000) (denying qualified immunity to officers who purportedly kicked and beat
a nonresisting, handcuffed suspect).
Following this Eleventh Circuit jurisprudence, the Court concludes that at the time
of Kent’s arrest it was clearly established that the type of force Brown used was
objectively unreasonable. Accordingly, qualified immunity is inappropriate and Brown’s
Motion is due to be denied.
B.

Heck v. Humphrey

Relying on Heck, Brown argues that Kent’s claims, if proven, would undermine
the validity of his conviction because:
the arrest report and information, which must have provided
the factual basis for [Kent]’s plea, states that [Kent] “actively
ran away from law enforcement” and that after he was caught
and taken to the ground “he actively resisted and refused to
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comply with commands to place his hands behind his back”
and that . . . Vargas then deployed his Taser and “conducted
a drive stun to the lower back of [Kent]” and at that point he
complied and was secured.
(Doc. 60, p. 12 (citing Doc. 60-2.) The Court rejects Brown’s argument.
In Heck v. Humphrey, the U.S. Supreme Court held that a § 1983 suit for damages
must be dismissed if “a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence,” unless the conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus. 512 U.S. 477, 487 (1994). The damages action
should not be dismissed, however, if the action (even if successful) would not
demonstrate the invalidity of any outstanding criminal judgment. See id; see also Dyer v.
Lee, 488 F.3d 876, 879–80 (11th Cir. 2007) (explaining that, as long as it is possible that a
§ 1983 suit would not negate the underlying conviction, then the suit is not barred by
Heck).
Here, is not clear that a judgment in Kent’s favor would “necessarily imply the
invalidity of his conviction or sentence.” Heck, 512 U.S. at 487. While the record is clear
that Kent pled nolo contendere to the Resisting Charge, there is a lack of evidence
indicating

which

of

Kent’s

actions

constituted

the

basis

for

his

plea.

(See generally Doc. 60-4.) It is therefore entirely possible that Kent pled only to the actions
preceding his surrender and arrest. In fact, Kent admits that at some point he ran from
Brown knowing that he was a law enforcement officer. (See Doc. 67, pp. 22–23.) This
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admission is consistent with Kent’s statements that once he became fully compliant,
Brown unreasonably used excessive force to effectuate his arrest. (Id. at 23–24.)
Therefore, because the record does not provide the factual basis for Kent’s plea,
and there is still a construction of the facts that would allow his conviction to stand, the
Court concludes that Heck does not apply.
IV.

CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED that the Motion for Summary
Judgment By Defendant Brown (Doc. 60) is DENIED.
DONE AND ORDERED in Chambers in Orlando, Florida, on May 30, 2017.

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