Howard et al v. Wilkinson et al
Filing
60
ORDER denying 23 44 Motions to Dismiss; granting in part and denying in part 41 Motion to Dismiss; Plaintiffs, Heidi Haye, Sonya Smith, and William Howard Jr., in their individual capacities are DISMISSED from this action; in all other respects, the 41 Motion is DENIED. Defendants shall answer the Complaint no later than April 16, 2018. Signed by Judge Paul G. Byron on 4/2/2018. (JRJ)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
CAROLYN HOWARD, HEIDI HAYE,
SONYA
SMITH,
and
WILLIAM
HOWARD, JR.,
Plaintiffs,
v.
Case No: 6:17-cv-1473-Orl-40GJK
RICHARD WILKINSON,
RICHARD
LEBLANC, RYAN WILSON, JAMES
NELSON, JUAN PADILLA, PENELOPE
GRAY, NANCY MENDOZA, RODNEY
MARTIN, ANDREA DISTIN-CAMPBELL
and ORANGE COUNTY FLORIDA,
Defendants.
/
ORDER
This cause comes before the Court on the following:
1. Defendant Orange County, Florida’s, Motion to Dismiss Count Ten of
Plaintiff’s Complaint (Doc. 23), filed October 2, 2017;
2. Plaintiffs’ Response to Defendant Orange County, Florida’s Motion to
Dismiss (Doc. 40), filed October 16, 2017;
3. Defendants Penelope Gray, Nancy Mendoza, Andrea Distin-Campbell, and
Rodney Martin’s Motion to Dismiss Parties and Counts Six, Seven, Eight,
and Nine of the Complaint (Doc. 41), filed October 17, 2017;
4. Plaintiffs’ Response to Defendants’ Motion to Dismiss Counts Six Through
Nine of the Complaint (Doc. 46), filed October 31, 2017;
5. Officer-Defendants Richard Wilkinson, Richard Leblanc, Ryan Wilson,
James Nelson, and Juan Padilla’s Motion to Dismiss (Doc. 44), filed
October 24, 2017;
6. Plaintiffs’ Response to Defendants Wilkinson, Leblanc, Wilson, Nelson, and
Padilla’s Motion to Dismiss (Doc. 47), filed November 7, 2017; and
7. Officer-Defendants’ Reply to Plaintiffs’ Response to Their Motion to Dismiss
(Doc. 50), filed November 27, 2017.
With briefing complete, the matter is ripe for review.
I.
BACKGROUND 1
This action centers on the death of William Howard (“Mr. Howard”). Mr. Howard
died from injuries sustained while in the custody of correctional officers at the Orange
County Jail (or the “Jail”), who broke Mr. Howard’s neck while relocating him to a different
cell within the Jail. His injuries went untreated for more than twenty-four hours, and at
9:10 a.m. on November 20, 2016, Mr. Howard was pronounced dead. His family brought
this action, claiming wrongful death and § 1983 claims for Fourteenth Amendment
violations, against Orange County, Florida, and various Jail employees. 2 Defendants
deny any responsibility.
1
This account of the facts is taken from Plaintiffs’ Complaint (Doc. 1). The Court accepts
these factual allegations as true when considering motions to dismiss. See Williams
v. Bd. of Regents, 477 F.3d 1282, 1291 (11th Cir. 2007).
2
The Complaint cites as Defendants five correctional officers and four nurses employed
at the Jail. (Doc. 1.) The correctional officers are Richard Wilkinson, Richard Leblanc,
Ryan Wilson, James Nelson, and Juan Padilla (collectively “Officer Defendants” or
“Officers”). The nurses are Penelope S. Gray, Nancy Mendoza, Andrea L. DistinCampbell, and Rodney Martin (collectively “Nurse Defendants”). This Order refers to
individual Defendants as “Defendant [LAST NAME].”
2
The events leading to Mr. Howard’s death began on November 16, 2016. On that
day, Mr. Howard suffered a mental breakdown, when he returned home from an out-ofstate funeral for his niece and her three children, who were brutally murdered. (Doc. 1, ¶
17.) A domestic dispute unfolded and Mr. Howard was arrested for domestic violence and
taken to the Orange County Jail. (Id.)
Mr. Howard was seventy-five years old at the time, and his initial medical screening
at the Jail revealed that he had glaucoma. (Id. ¶ 18.) He was first placed in a standard
cell for detainees, but was moved to a suicide prevention cell on November 18, 2016,
after nurses observed him in an “agitated” state wandering around his cell. (Id. ¶¶ 19–
20.) At 12:20 p.m., a licensed psychologist assessed Mr. Howard, and documented that
he was disoriented, had an incoherent thought process, and was suffering from memory
problems. (Id. ¶ 21.) Specifically, the psychologist described him as “very confused, and
unable to answer questions in a reality based manner.” (Id. ¶ 22.) Jail staff decided to
return Mr. Howard to a psychological observation cell. (Id. ¶ 23.)
At 10:50 p.m., the Officer Defendants arrived to transport Mr. Howard. (Id. ¶¶ 23–
24.) Gathering outside the cell, one officer mentioned to the others that Mr. Howard was
“blind.” (Id. ¶ 25.) After ordering him to approach the cell door to be handcuffed, the Officer
Defendants banged loudly on the cell door to alert Mr. Howard as to the door’s location.
(Id. ¶¶ 24–25.) Mr. Howard failed to approach the door in response, so Defendant Padilla
determined that force was necessary to remove him. (Id. ¶ 26.) They summoned
Defendant Nelson to film the use of force. (Id. ¶ 27.)
Mr. Howard’s children—Heidi Haye, Sonya Smith, and William Howard, Jr.—are also
named Plaintiffs.
3
Before entering the cell, Defendant Padilla ordered Defendant Wilson to spray Mr.
Howard with Oleoresin Capsicum (“pepper spray”). (Id. ¶ 28.) Defendant Wilson
complied, pepper spraying Mr. Howard in the face through an opening in the cell door.
(Id.) Coupled with his glaucoma, the pepper spray blinded Mr. Howard. (Id. ¶ 29.) Mr.
Howard initially began to approach the cell door, but retreated amid the confusion. (Id. ¶
30.) The Officers then entered the cell, where Mr. Howard was cowering in the corner.
(Id. ¶ 32.) The officers then bombarded Mr. Howard with commands, one yelling “Don’t
move!” while another ordered, “put your hands behind your back!” (Id. ¶ 33.)
Next, the Officers grabbed Mr. Howard and pinned him against the wall. (Id. ¶ 34–
35.) They did not handcuff him. Instead, the Officers then ripped Mr. Howard from the wall
and slammed him down head first into the concrete floor, breaking his neck. (Id. ¶ 35.)
They handcuffed him while he lay prostrate on the ground, and four Officers then grabbed
and carried Mr. Howard to the psychological observation cell. (Id. ¶¶ 38–39.) While the
Officers lugged his body, they let his head dangle beneath his shoulders without support.
(Id. ¶ 39.) He could not hold it up on his own. (Id.) After arriving at the new cell, the Officers
stripped Mr. Howard and left him naked on the floor. (Id. ¶ 40.) Upon completing the
operation, Defendant Padilla congratulated the other officers on their work, telling them
“good job.” (Id. ¶ 41.)
Medical personnel at the Jail did not perform a medical assessment or treat Mr.
Howard’s injuries for more than twenty-four hours following the use of force, despite being
on notice of the use of force, numerous pain complaints, and behavior indicating Mr.
Howard was injured. (Id. ¶ 42.) The Nurse Defendants did, however, view and make
perfunctory assessments of Mr. Howard in the hours following his injuries. (Id. ¶ 43.)
4
Defendant Martin was the registered nurse on duty at the Jail on the night of the use of
force event. (Id. ¶ 49.) She was aware of the use of force, but did not perform or order a
medical assessment of, or treatment for, Mr. Howard. (Id.) Defendant Mendoza visited
Mr. Howard’s cell twice in the immediate aftermath and noted that he was restless and
allegedly pacing. (Id. ¶ 44.) The following morning, Defendant Mendoza observed Mr.
Howard rolling side to side on the cell floor. (Id. ¶ 45.) Defendant Mendoza took no
substantive action. Later that morning, Defendant Gray visited Mr. Howard’s cell three
times, observing him laying prone on the floor, complaining of neck and back pain. (Id. ¶
46.) Defendant Gray returned in the late afternoon, documented Mr. Howard’s continued
neck and back pain complaints, and noted that he could move his extremities and turn
his head. (Id. ¶ 47.) Again, no further action was taken. That evening, Defendant DistinCampbell visited Mr. Howard’s cell and observed him laying supine in his bunk. (Id. ¶ 48.)
At 9:52 p.m., a correctional officer found Mr. Howard unresponsive in his cell. (Id.
¶ 50.) He was taken to Orlando Regional Medical Center in critical condition, and
pronounced the dead the following morning. (Id. ¶¶ 51–52.) An autopsy determined that
Mr. Howard’s cause of death was blunt force impact resulting in neck fracture with cervical
spinal cord trauma and hypoxic encephalopathy. (Id. ¶ 53.) The medical examiner ruled
Mr. Howard’s death a homicide. (Id.) Following this ruling, Plaintiff brought this action.
The Complaint proceeds in thirteen Counts. Counts I through IV allege 42 U.S.C.
§ 1983 claims for excessive use of force against the Officer Defendants (apart from
Defendant Nelson). Count V brings a § 1983 excessive force claim against Defendant
Nelson—who filmed the use of force incident—premised on Defendant Nelson’s
deliberate indifference to the excessive use of force. Counts VI through IX assert § 1983
5
claims against the Nurse Defendants for their deliberate indifference to Mr. Howard’s
serious medical needs. Count X alleges a municipal liability claim against Orange County,
Florida, for delegating final policymaking authority to the Nurse Defendants. Counts XI
through XIII aver wrongful death claims against Orange County premised on (XI) battery,
(XII) negligent hiring and retention, and (XIII) negligence.
All Defendants have separately moved to dismiss. (Docs. 23, 41, 44.)
II.
STANDARD OF REVIEW
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the plaintiff’s
complaint. To survive the motion, the complaint must “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is
plausible on its face when the plaintiff alleges enough facts to “allow[] the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). The mere recitation of the elements of a claim is not
enough, and the district court need not give any credence to legal conclusions that are
unsupported by sufficient factual material. Id. District courts must accept all well-pleaded
allegations within the complaint and any documents attached thereto as true and must
read the complaint in the light most favorable to the plaintiff. Hunnings v. Texaco, Inc.,
29 F.3d 1480, 1484 (11th Cir. 1994) (per curiam).
III.
DISCUSSION
A.
Orange County, Florida’s, Motion to Dismiss
Defendant Orange County, Florida (“Orange County” or the “County”), moves to
dismiss Count X of the Complaint. (Doc. 23.) Count X alleges a § 1983 municipal liability
6
claim against Orange County premised on the Nurse Defendants’ deliberate indifference
to Mr. Howard’s serious medical needs. (Doc. 1, ¶¶ 54–56.)
Orange County makes two arguments for dismissal: (1) the Complaint fails to
allege that Mr. Howard experienced a serious medical need, a prerequisite to a colorable
deliberate indifference claim, and (2) the Complaint fails to allege that the Nurse
Defendants were acting pursuant to an official policy or custom. (Doc. 23, pp. 4–7.)
1.
Count X Adequately Pleads a § 1983 Deliberate Indifference Claim
Count X alleges that Mr. Howard’s Fourteenth Amendment rights were violated
because the Nurse Defendants “acted with deliberate indifference to [Mr. Howard’s]
serious medical needs.” (Doc. 1, ¶ 99).
Title 42 U.S.C. § 1983 confers a cause of action upon individuals whose federal or
Constitutional rights are violated by persons acting under color of state law. In the context
of a pretrial detainee facing a serious medical need, a Fourteenth Amendment violation
occurs when state officials act with “deliberate indifference to [that] serious medical
need[.]” Estelle v. Gamble, 429 U.S. 97, 104 (1976); Cottrell v. Caldwell, 85 F.3d 1480,
1490 (11th Cir. 1996). To state a claim, a pretrial detainee must allege (1) that she
experienced a “serious medical need,” (2) that a jail official acted with “deliberate
indifference to her serious medical need,” and (3) that the deliberate indifference caused
the plaintiff’s injury. Goebert v. Lee Cty., 510 F.3d 1312, 1326 (11th Cir. 2007) (citations
omitted).
The first prong is satisfied where the medical need “is 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. (quoting Hill v. Dekalb
7
Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994)). The second prong requires
a showing that the official acted with “deliberate indifference” to the detainee’s serious
medical need. Id. To do so, the “plaintiff must prove three things: (i) subjective knowledge
of a risk of serious harm; (ii) disregard of that risk; (iii) by conduct that is more than gross
negligence.” Id. at 1327 (alterations accepted). The third prong requires a defendant be
causally connected to the constitutional harm. Id.
Orange County challenges the second prong. (Doc. 23, pp. 4–5.) They contend
that it was clear from the Nurses’ observations that Mr. Howard could move his extremities
and turn his head after the use of force. (Id.) The County characterizes Mr. Howard as
“walking and talking” in the aftermath of the use of force. (Id. At p. 5.) Therefore, Orange
County submits that Mr. Howard did not display a serious medical need to which County
employees could have been deliberately indifferent. (Id.) This argument defies reason.
The Complaint plainly alleges a plausible deliberate indifference claim. It alleges
that guards pepper sprayed and then slammed Mr. Howard—a seventy-five year old
man—face first into a concrete floor and carried his limp body to a new cell. (Doc. 1, ¶¶
28, 34–35.) The next day, the Nurse Defendants observed Mr. Howard in varying degrees
of agony, yet they took no action to treat Mr. Howard or give him more than a cursory
inspection. (Id. ¶¶ 43–49.) From these, the Complaint sufficiently alleges that Mr. Howard
suffered a serious medical need. See Goebert, 510 F.3d at 1326; see also Brown v.
Hughes, 894 F.2d 1533, 1538 n.4 (11th Cir. 1990) (“Evidence of recent traumatic injury .
. . has generally been sufficient to demonstrate a serious medical need.”).
The Complaint likewise establishes the Nurse Defendants’ deliberate indifference
to that need, insofar as it alleges (i) the Nurse Defendants knew of the serious medical
8
risks facing Mr. Howard (ii) and disregarded those risks (iii) by conduct that is more than
gross negligence. 3 See Goebert, 510 F.3d at 1327.
2.
Count X Adequately Pleads Municipal Liability
Next the County argues that the Complaint fails to state a basis for § 1983
municipal liability. These types of claims are hard to come by. A county government
cannot be held liable under the doctrines of respondeat superior or vicarious liability for
the constitutional wrongdoings of its employees or agents. City of Canton v. Harris, 489
U.S. 378, 385 (2007); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). Only
those constitutional violations attributable to the local government’s policymakers warrant
liability. Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 403–04 (1997). To recover against
a municipality, a plaintiff must “identify a municipal ‘policy’ or ‘custom’ that caused [his]
injury.” Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998).
This can be shown through the decisions of a final policymaker. The requisite
policymaking authority to support a municipal liability claim “is necessarily the authority to
make final policy.” City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). Delegation
of authority to a subordinate to exercise discretion is sufficient to confer final policymaking
authority if the subordinate’s discretion is not constrained by official policies or subject to
review. Id. at 124–28; see also Mandel v. Doe, 888 F.2d 783, 792 (11th Cir. 1989).
3
In deciding whether an official’s conduct was “more than gross negligence,” the
Eleventh Circuit regularly considers three additional factors: “(1) the seriousness of
the medical need; (2) whether the delay worsened the medical condition; and (3) the
reason for the delay.” Goebert, 510 F.3d at 1327. In the Court’s view, the allegations
of the Complaint easily meet this heightened standard. Cf. Lindley v. Birmingham, 652
F. App’x 801, 805–06 (11th Cir. 2016).
9
Accepting the allegations of the Complaint as true, and viewing the Complaint in
the light most favorable to Plaintiffs, Count X adequately pleads a basis for municipal
liability against Orange County. The Complaint alleges that the County delegated final
policymaking authority to the Nurse Defendants, whose discretion was not constrained
by official policies or subject to review. Moreover, the Complaint’s recounting of four
separate Jail nurses visiting Mr. Howard as he lay dying in his cell, and failing to provide
him medical care in the face of a patently obvious serious medical need, plausibly alleges
a “custom” supporting municipal liability. Orange County’s motion to dismiss is therefore
due to be denied.
B.
Nurse Defendants’ Motion to Dismiss
In their Motion, the Nurse Defendants contend that Heidi Haye, Sonya Smith, and
William Howard Jr. lack standing to pursue individual capacity claims arising from Mr.
Howard’s death. (Doc. 41, pp. 4–5). Next, the Nurse Defendants claim entitlement to
qualified immunity. (Id. at pp. 5–12).
1.
Mr. Howard’s Children Lack Standing
The Nurse Defendants move to dismiss the § 1983 claims brought on behalf of Mr.
Howard’s children as precluded by Florida’s Wrongful Death Act. (Doc. 41, pp. 4–5.)
Plaintiffs counter that these limitations are inconsistent with § 1983 and should not be
applied. (Doc. 46, p. 5.)
Florida’s Wrongful Death Act (“FWDA”) provides that any “action shall be brought
by the decedent’s personal representative, who shall recover for the benefit of the
decedent’s survivors and estate all damages, as specified in this act, caused by the injury
resulting in death.” Fla. Stat. § 768.20. “Similarly, this Court has held that ‘a section 1983
10
cause of action is entirely personal to the direct victim of the alleged constitutional tort’
and ‘only the purported victim, or his estate’s representative(s), may prosecute a section
1983 claim.’” Christie v. Lee Cty. Sheriff’s Office, No. 2:10–CV–420–FtM–36DNF, 2011
WL 4501953, at *2 (M.D. Fla. Sept. 28, 2011) (quoting Torres v. Orange Cty., No.
CIVA6991662CIVORL-19B, 2000 WL 35527256, at *1 (M.D. Fla. May 16, 2000)).
Plaintiffs point out that Florida district courts are split on the issue, 4 and attempt to
distinguish the cases cited by the Nurse Defendants. (Doc. 46, pp. 5–9.) The Court,
however, agrees with the Middle District decisions applying the FWDA limitations to §
1983 claims, 5 and adopts their analysis on this issue. Accordingly, the individual capacity
claims asserted by Mr. Howard’s children—Heidi Haye, Sonya Smith, and William
Howard Jr.—are dismissed.
2.
The Nurse Defendants Are not Entitled to Qualified Immunity
The Nurse Defendants also move to dismiss the Counts alleged against them on
the basis of qualified immunity. (Doc. 41, pp. 5–12.) Here, their arguments are not so
successful. Qualified immunity protects government officials “from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
4
Plaintiffs identify a single case wherein a Florida district court refused to impose
FWDA limitations to § 1983 claims. See Heath v. City of Hialeah, No. 80–399–CIVWMH, 560 F. Supp. 840 (S.D. Fla. 1983). In advancing their arguments, the parties
cite to numerous decisions from this District that reached the opposite conclusion,
applying FWDA limitations to § 1983 claims. See note 6, infra.
5
See, e.g., Estate of Breedlove v. Orange Cty. Sheriff’s Office, No. 6:11–cv–2027–Orl–
31KRS, 2012 WL 2389765, at *3–4 (M.D. Fla. June 25, 2012); Christie v. Lee Cty.
Sheriff’s Office, No. 2:10–CV–420–FtM–36DNF, 2011 WL 4501953, at *2 (M.D. Fla.
Sept. 28, 2011); Torres v. Orange Cty., No. CIVA6991662CIVORL-19B, 2000 WL
35527256, at *1 (M.D. Fla. May 16, 2000); see also Sharbaugh v. Beaudry, 267 F.
Supp. 3d 1326, 1335 (N.D. Fla. 2017).
11
constitutional rights of which a reasonable person would have known.” Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). To receive qualified immunity, a government 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) (internal quotation marks omitted). Plaintiffs do not dispute this first step. (Doc. 46,
p. 9.)
“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.” Lee, 284 F.3d at 1194. To do so, the plaintiff must make a two-part showing.
First, the plaintiff must allege that the facts of the case, if proven to be true, would make
out a constitutional violation. Pearson v. Callahan, 555 U.S. 223, 232 (2009); Beshers v.
Harrison, 495 F.3d 1260, 1265 (11th Cir. 2007). Second, the plaintiff must allege that the
constitutional right was “clearly established” at the time of the alleged misconduct.
Pearson, 555 U.S. at 232. Because qualified immunity provides a complete defense from
suit, “courts should ascertain the validity of a qualified immunity defense as early in the
lawsuit as possible.” Gilmore v. Hodges, 738 F.3d 266, 272 (11th Cir. 2013). With regard
to Plaintiff’s two-part showing, the Nurse Defendants only dispute whether the Complaint
alleges a constitutional violation. (Doc. 41, p. 6.)
In the course of finding that the Complaint adequately alleged municipal liability
against Orange County in Section III.A.1., supra, the Court found that the Complaint
adequately alleged viable Fourteenth Amendment deliberate indifference claims against
the Nurse Defendants. The undersigned will not retread ground covered supra. Therefore,
the Plaintiff has met the burden of showing that qualified immunity as to the Nurse
12
Defendants is inappropriate. Like before, the Complaint alleges a plausible deliberate
indifference claim, a Fourteenth Amendment violation, against the Nurse Defendants. The
Nurse Defendants’ motion to dismiss based on qualified immunity is thus due to be
denied.
C.
Officer Defendants’ Motion to Dismiss
The final group of Defendants—the Officers—also move to dismiss based on
qualified immunity. (Doc. 44.) The Officer Defendants claim that (i) Mr. Howard’s
constitutional rights were not violated, and (ii) their conduct was not proscribed by clearly
established law. (Id. at pp. 4–9.) Their motion is due to be denied.
1.
The Officer Defendants Violated Mr. Howard’s Constitutional Rights
Plaintiffs allege excessive force claims against the Officer Defendants. (Doc. 1, ¶¶
54–68.) To establish a viable excessive force claim, a plaintiff must demonstrate that the
use of force was “objectively unreasonable.” Kingsley v. Hendrickson, 135 S. Ct. 2466,
2473 (2015). “[O]bjective reasonableness turns on the ‘facts and circumstances of each
particular case.’” Id. (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). Courts
making such determinations must view the facts “from the perspective of a reasonable
officer on the scene, including what the officer knew at the time, not with the 20/20 vision
of hindsight.” Id. Courts must also credit the government’s need to manage the facility
where an individual is detained, and defer to policies and practices that jail officers believe
are needed to preserve order, discipline, and security. Id.
Additional factors to consider include:
[T]he relationship between the need for the use of force and the amount of
force used; the extent of the plaintiff’s injury; any effort made by the officer
to temper or to limit the amount of force; the severity of the security problem
13
at issue; the threat reasonably perceived by the officer; and whether the
plaintiff was actively resisting.
Id. In their Motion, the Officer Defendants argue that the use of force was objectively
reasonable, “and proportional to the Officers’ need to move” Mr. Howard to a new cell.
(Doc. 44, pp. 4–8.) The Court disagrees.
First, the amount of force used grossly exceeded the need. Defendants’
characterization of Mr. Howard as unstable and unpredictable thus necessitating
considerable force overlooks critical facts: Mr. Howard was a seventy-five year old man
afflicted with glaucoma, and by the time Mr. Howard was seized and slammed to the
ground, he had been blinded by pepper spray. These facts were known by the Officer
Defendants. Further, the Officers who slammed Mr. Howard to the ground were all large
men, weighing more than two hundred pounds, while Mr. Howard was considerably
smaller. Defendants’ contention that the facts and circumstances justified the Defendants
in slamming Mr. Howard to the ground with enough force to break the seventy-five year
old’s neck is appalling.
Second, the extent of Mr. Howard’s injury is “obviously significant,” (Doc. 44, p. 7),
and militates heavily in favor of finding that the force used was objectively unreasonable.
The Officer Defendants’ assertion that “a broken bone is not an objectively unreasonable
result from noncompliance with official directives” is stunning. (Id.) Sure, broken bones
can result from forceful interactions with law enforcement, but not all broken bones are
alike. A broken neck is a debilitating, life-threatening injury to anyone, even an ablebodied man, but especially to seventy-five-year-old Mr. Howard. Furthermore, the
Complaint alleges that Mr. Howard was unable to understand or obey the initial
commands to come to the door. At bottom, the position espoused by the Officer
14
Defendants on this factor is that Mr. Howard’s confused noncompliance justified a death
sentence. The Court rejects this callous contention.
Third, in light of the circumstances, attempts to limit force weighs against the
Officer Defendants. Though the Officer Defendants verbally commanded Mr. Howard to
walk to the door to be moved, their commands went unheeded because of Mr. Howard’s
disoriented state and glaucoma. The Officer Defendants’ subsequent actions showed less
restraint. They pepper sprayed Mr. Howard, then four large officers rushed and pinned
him against the wall. Then, instead of cuffing him immediately, they slammed him face
first into the concrete floor. Considering all the facts and circumstances, this factor also
weighs against the Officer Defendants.
The remaining three factors weigh in favor of finding the force used objectively
unreasonable. The security problem at issue, a disoriented and partially blinded seventyfive year old man acting erratically, cannot fairly be characterized as “severe.” For similar
reasons, it strains common sense to believe that four large Officers perceived a significant
threat from Mr. Howard, as he was cowering in the corner when the Officers entered his
cell. Finally, the Complaint does not allege that Mr. Howard was actively resisting; instead
it paints a picture of a blind, confused detainee who was incapable of complying with the
Officers’ commands because of his mental state.
Unquestionably, the Complaint establishes that the Officer Defendants violated Mr.
Howard’s Fourteenth Amendment rights based on the excessive use of force against him.
The Court now turns to the question of whether the right violated was “clearly established.”
15
2.
The Officer Defendants Violated a Clearly Established Right
The Officer Defendants next argue that there “was no clearly established law
proscribing a takedown of a resisting detainee.” (Doc. 44, p. 8.) They insist that, in the
aftermath of the Kingsley decision clarifying the elements of a Fourteenth Amendment
excessive force claim, there was “a dearth of on-point factual law in the pretrial detainee
context” informing officers of what they can and cannot do. (Id.). That is, in the absence
of opinions applying Kingley in factually similar cases, there was no “clearly established”
use of force law the Officer Defendants could have violated. This argument is, of course,
absurd.
“For a constitutional right to be clearly established, its contours ‘must be sufficiently
clear that a reasonable official would understand that what he is doing violates that right.’”
Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Anderson v. Creignton, 483 U.S. 635,
640 (1987)). Even in novel factual circumstances, “officials can still be on notice that their
conduct violates established law . . . .” Id. at 741 (rejecting a requirement that previous
cases have “materially similar” facts to give officials notice). So a right can be clearly
established before a Court speaks directly to the precise factual circumstances. At the
time of the incident, the Eleventh Circuit had firmly established the right of a non-resisting
individual to (i) be free from being pepper sprayed gratuitously, and (ii) not be slammed
head first into a hard floor. See Thomas v. Bryant, 614 F.3d 1288, 1312 (11th Cir. 2010);
Slicker v. Jackson, 215 F.3d 1225, 1233 (11th Cir. 2000).
Furthermore, the Officer Defendants overstate the “upheaval” in use of force
caselaw occasioned by the Supreme Court’s decision in Kingsley. (Doc. 44, p. 8.) That
case merely eliminated the requirement imposed by several Circuit Courts—including the
16
Eleventh—that plaintiffs prove an officer’s subjective awareness that their use of force
was unreasonable to make out an excessive force claim. Kingsley, 135 S. Ct. at 2472–
76. It did not otherwise abrogate the decisional excessive force law in this Circuit. In light
of the continued viability of excessive force cases pre-dating Kingsley, a reasonable
official occupying the Officer Defendants’ position would understand that their actions
violated Mr. Howard’s Fourteenth Amendment rights. See Thomas, 614 F.3d at 1312;
Lee v. Ferraro, 284 F.3d 1188, 1197–98 (11th Cir. 2002); Slicker, 215 F.3d at 1232–33.
This conclusion is fortified by the extreme force alleged in the Complaint and lack of a
compelling justification to use such force. 6
The Officer Defendants assert that they have distinguished the Lee/Slicker line of
cases—involving “restrained, compliant, and non-resisting suspects on the street”—cited
by Plaintiff to establish the excessive that the Officer Defendants violated a clearly
established right, therefore those cases should not be considered. (Doc. 50, p. 4.)
Defendants would do well to remember the present stage of proceedings. In weighing a
motion to dismiss, the Court is obliged to accept all well-pleaded factual allegations as
6
It is worth noting that the allegations of the Complaint might plausibly state a claim for
excessive use of force under the pre-Kingsley Eleventh Circuit law, which required
that officials act “maliciously and sadistically to cause harm.” Fennell v. Gilstrap, 559
F.3d 1212, 1217 (11th Cir. 2009). In such an inquiry, Fennell instructed courts to
consider factors similar to the Kingsley factors. Id. (“[1] the need for the application of
force; [2] the relationship between the need and the amount of force that was used;
[3] the extent of the injury inflicted upon the prisoner; [4] the extent of the threat to the
safety of staff and inmates; and [5] any efforts made to temper the severity of a forceful
response.”).
That is to say, even under pre-Kingsley law (which was more favorable to officerdefendants), reasonable officials in the Officer Defendants’ shoes would have been
on notice that their conduct violated Mr. Howard’s Fourteenth Amendment rights. The
Court therefore has no difficulty finding that they would have been on notice postKingsley.
17
true, and read the complaint in the light most favorable to the plaintiff. Requests by the
Officer Defendants that the Court read the Complaint in a light favorable to the defendant,
while making numerous inferences adverse to the plaintiff based on self-serving
statements by the defendants, are not well-taken. The Plaintiffs have met their burden of
establishing that the Officer Defendants are not entitled to qualified immunity.
3.
The Complaint States a Plausible Failure to Intervene Claim Against
Defendant Nelson
Finally, Defendants argue that the Complaint fails to state a plausible “failure to
intervene” claim against Defendant Nelson—who filmed the use of force against Mr.
Howard 7—because he never “had a fair opportunity to jump in and prevent the ‘slam’
during the rapidly unfolding series of events.” (Doc. 44, pp. 9–10.) Plaintiff counters that
Defendant Nelson had multiple opportunities to intervene and prevent the “welltelegraphed use of force by the other Officers.” (Doc. 47, p. 11.) The Court agrees with
Plaintiffs.
“[A]n officer who is present at the scene and who fails to take reasonable steps to
protect the victim of another officer’s use of excessive force, can be held liable for his
nonfeasance.” Skrtich v. Thornton, 280 F.3d 1295, 1301 (11th Cir. 2002). In Priester v.
City of Riviera Beach, 208 F.3d 919 (11th Cir. 2000), the Eleventh Circuit reversed a
district court’s grant of judgment as a matter of law to an officer-defendant who failed to
intervene when an officer in his presence directed his dog to attack a non-resisting
suspect. 208 F.3d at 924–25. There, the officer who failed to intervene watched the canine
7
(Doc. 1, ¶ 27.) Defendant Nelson’s liability is premised on his failure to intervene to
stop the Officer Defendants’ excessive use of force. (Id. ¶ 37.)
18
use of force from nearby, and maintained “voice contact” with the other officer. Id. at 923–
25. The plaintiff in Priester testified that the attack lasted longer than two minutes, which
the Eleventh Circuit found was enough time to intervene by ordering the other officer
restrain the dog. Id. at 925.
Applying Priester here, the Complaint states a plausible failure to intervene claim
against Defendant Nelson. Although the Complaint does not allege how long the use of
force against Mr. Howard lasted, the Complaint plausibly shows that the incident lasted
long enough for Defendant Nelson to intervene. That is because the use of force
complained of is not solely the slam of Mr. Howard into the concrete. Rather the Officer
Defendants began by pepper spraying Mr. Howard after he failed to come to the door to
be handcuffed. Next, they rushed Mr. Howard and pinned him against the wall. The
Officers then pulled him from the wall and slammed him to the ground. Finally, Mr. Howard
was handcuffed and carried out of the cell, his neck dangling from his shoulders without
support. As in Priester, “the events happened very quickly,” however the use of force here
lasted long enough for Defendant Nelson to intervene. By instead filming, Defendant
Nelson allowed the unconstitutional actions to take place. Accordingly, the Complaint
states a plausible failure to intervene claim against Defendant Nelson. See also Priester,
208 F.3d at 927–28 (finding the defendant who failed to intervene was not entitled to
qualified immunity where the excessive force was “obvious,” and when the defendant
“had the time and ability to intervene, but . . . did nothing”).
IV.
CONCLUSION
For the aforementioned reasons, it is ORDERED AND ADJUDGED as follows:
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1. Defendant Orange County, Florida’s, Motion to Dismiss Count Ten of
Plaintiff’s Complaint (Doc. 23) is DENIED.
2. Defendants, Penelope Gray, Nancy Mendoza, Andrea Distin-Campbell, and
Rodney Martin’s Motion to Dismiss Parties and Counts Six, Seven, Eight,
and Nine of the Complaint (Doc. 41) is GRANTED IN PART and DENIED
IN PART.
a. Plaintiffs, Heidi Haye, Sonya Smith, and William Howard Jr., in their
individual capacities are DISMISSED from this action.
b. In all other respects, the Motion is DENIED.
3. Officer-Defendants Richard Wilkinson, Richard Leblanc, Ryan Wilson,
James Nelson, and Juan Padilla’s Motion to Dismiss (Doc. 44) is DENIED.
4. Defendants shall answer the Complaint no later than April 16, 2018.
DONE AND ORDERED in Orlando, Florida, on April 2, 2018.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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