TURNER v. OCHOA

Filing 31

ORDER granting 14 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE CLAY D LAND on 2/5/2024. (ggs)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
SHERRY MICHELLE TURNER,

*

Plaintiff,

*

vs.

*

LUIS E. OCHOA,

*

Defendant.

CASE NO. 3:22-cv-49 (CDL)

*
O R D E R

Plaintiff Sherry Turner filed this action pursuant to 42
U.S.C. § 1983 alleging that Defendant Luis Ochoa used excessive
force in arresting her, in violation of the Fourth Amendment to
the United States Constitution.

Pending before the Court is

Ochoa’s motion for summary judgment (ECF No. 14).

Ochoa argues

that he is entitled to qualified immunity from Turner’s claim.
As discussed in greater detail below, the Court finds that Ochoa
is entitled to qualified immunity because his conduct during
Turner’s

arrest

did

not

violate

clearly

established

law.

Accordingly, Ochoa’s motion is granted.
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ.

P. 56(a).

In

determining

whether

a

genuine

Fed. R.

dispute

of

material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party’s favor.
477 U.S. 242, 255 (1986).

Anderson v. Liberty Lobby, Inc.,
A fact is material if it is relevant

or necessary to the outcome of the suit.

Id. at 248.

A factual

dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.

Id.

FACTUAL BACKGROUND
Viewed in the light most favorable to Turner, the record
reveals the following facts.

On December 24, 2021, Turner was

driving into Oglethorpe County as it was getting dark.

She did

not have her headlights on, and she drove past a stop sign.

She

collided with a truck pulling a trailer and knocked it off the
road.

Turner

admits

to

having

ingested

beer,

Xanax,

and

marijuana hours earlier that day, but she denies that she was
intoxicated at the time of the wreck.

Rather, she attributes

the wreck to her headlights not coming on automatically and her
poor night vision due to detached retinas in her eyes.
Dep. 48:1-6, 50:2-11, ECF No. 17.

Turner

After the crash, witnesses

checked on Turner, who wanted to go home.

Turner admitted to

these witnesses that she drank alcohol and took Xanax that day.
Upon his arrival on the scene, Oglethorpe County Sheriff’s
Deputy Honeycutt spoke to the witnesses, who relayed that Turner
2

admitted she had consumed beer and Xanax.

This information,

combined with Deputy Honeycutt’s assessment of Turner’s demeanor
and his belief that he smelled alcohol, led Deputy Honeycutt to
believe that Turner was intoxicated.

He therefore radioed his

partner, Deputy Ochoa, and directed Ochoa to stay with Turner
when he arrived on the scene.

Honeycutt Dep. 7:2-8, ECF No. 18.

A witness Turner relies on in opposing summary judgment,
Donna Magnus, stated that as Ochoa approached Turner, Turner
“was very upset and raised her voice,” cursing at Ochoa and
telling him that “she was not going with him anywhere.”
Am. Decl. ¶ 5(d), ECF No. 26-1.

Magnus

Specifically, Turner said “I’m

not going anywhere . . . I am not going to any hospital because
I am not hurt . . . I am not going to jail because I haven’t
done

anything

wrong.”

Id.

Turner

does

not

contradict

or

dispute this statement from Ms. Magnus.
“Without any warning, Deputy Ochoa said ‘I smell alcohol’
and grabbed Ms. Turner,” placing a handcuff on one of her arms.
Id. ¶ 5(f).
any

intention

Turner asserts that, out of surprise and without
to

flee

or

resist

arrest,

she

instinctively

withdrew from Ochoa and did not give him her other arm.

Magnus

observed the interaction, stating that “Turner appeared to be
shocked and upset when Deputy Ochoa grabbed her.

She reacted to

that by trying to push away from him without giving him her
other hand.”

Id. ¶ 5(g).

Ochoa then charged and tackled Turner
3

and landed on top of her.

Id. ¶ 5(h).

There is no dispute that

Ochoa is taller and heavier than Turner.
landing

on

Turner,

her

arm

was

broken

As a result of Ochoa
such

that

she

needed

surgery to repair it. 1
DISCUSSION
Ochoa

seeks

qualified

immunity

on

Turner's

claim.

“In

order to be entitled to qualified immunity, the officer[] first
must establish that [he was] acting within [his] discretionary
authority during the incident.”
959, 967 (11th Cir. 2018).

Manners v. Cannella, 891 F.3d

There is no dispute that Ochoa was

acting within his discretionary authority.
Once it is established that the officer was acting within
his discretionary authority, the Court must determine if “the
facts

that

a

plaintiff

has

.

.

.

shown

.

.

.

make

out

a

violation of a constitutional right” and if so, the Court must
“decide whether the right at issue was ‘clearly established’ at
the time of the defendant’s alleged misconduct.”
Callahan, 555 U.S. 223, 232 (2009).

Pearson v.

The Court “may consider

these two prongs in either order; an official is entitled to
Turner argues that Ochoa intentionally spoliated his body camera
footage of Turner’s arrest, in bad faith, such that Turner should be
entitled to an adverse inference regarding what that footage would
reveal.
For the purposes of deciding this summary judgment motion,
however, the Court has already drawn all inferences regarding the
events of the arrest in favor of Turner. There is no further adverse
inference that could be drawn in Turner’s favor, as the Court has
already evaluated this motion based on Turner’s version of what the
body camera footage would have shown. Accordingly, the Court declines
to address Turner’s spoliation argument.

1

4

qualified immunity if the plaintiff fails to establish either.”
Piazza v. Jefferson Cnty., 923 F.3d 947, 951 (11th Cir. 2019)
(citing Jacoby v. Baldwin Cnty., 835 F.3d 1338, 1344 (11th Cir.
2016)).
A

plaintiff

may

demonstrate

that

the

law

clearly

establishes that a particular amount of force is excessive in
one of three ways.

Patel v. City of Madison, 959 F.3d 1330,

1343 (11th Cir. 2020).

First, a plaintiff can point to a

materially factually similar case from the U.S. Supreme Court,
the Eleventh Circuit, or the Supreme Court of the state where
the events at issue occurred, in which it was decided that what
the officer did to the plaintiff was unlawful.
plaintiff

may

“show

that

a

broader,

Second, a

Id.

clearly

established

principle [from prior case law] should control the novel facts
in this situation.”

Id. (quoting Mercado v. City of Orlando,

407 F.3d 1152, 1159 (11th Cir. 2005)).

Finally, a plaintiff may

show that “the official’s conduct lies so obviously at the very
core

of

what

unlawfulness

the

of

the

Fourth

Amendment

conduct

was

prohibits

readily

that

apparent

official, notwithstanding the lack of caselaw.”

to

the
the

Id. (quoting

Priester v. City of Riviera Beach, 208 F.3d 919, 926 (11th Cir.
2000)).

Under this “obvious clarity” test, qualified immunity

is

overcome

only

precedent

“if

‘inevitably

the
lead

standards
every
5

set

forth

reasonable

in

officer

relevant
in

[the

defendant’s] position to conclude the force was unlawful.’”
(quoting Priester, 208 F.3d at 926-27)).

Id.

The Court’s ultimate

concern is “that any officer must have had fair notice, at the
time

he

engaged

in

his

actions,

amounted to excessive force.”

that

his

challenged

conduct

Id.

Turner argues that Ochoa was not justified in his use of
force

because

(1)

he

did

not

have

probable

cause

to

arrest

Turner for driving under the influence in violation of O.C.G.A.
§ 40-6-391, and/or (2) that even if he had probable cause for
the arrest, the amount of force was excessive.

Turner concedes

that “Deputy Ochoa had probable cause to arrest [her] for . . .
running a stop sign and [driving with] no headlights” at night.
Pl.’s Resp. to Def.’s Mot. for Summ. J. 6, ECF No. 27.

On those

grounds alone, Ochoa had the authority to arrest Turner.

See

United States v. Clark, 32 F.4th 1080, 1088-89 (11th Cir. 2022)
(explaining that traffic violations and misdemeanor offenses can
serve as predicates for custodial arrest under Georgia law).
Additionally, to be entitled to qualified immunity against
a claim based upon an alleged unjustified arrest, the arresting
officer only needs “arguable probable cause.”
284

F.3d

Myles,

1188,

245

1195

F.3d

(11th

1299,

Cir.

1302

2002)

(11th

Lee v. Ferraro,

(quoting

Cir.

Scarbrough

2001)).

v.

“Arguable

probable cause exists ‘where reasonable officers in the same
circumstances

and

possessing

the
6

same

knowledge

as

the

Defendant[] could have believed that probable cause existed to
arrest.’”

Id. (quoting Redd v. City of Enterprise, 140 F.3d

1378, 1382 (11th Cir. 1998)).
Turner does not dispute that she told witnesses after the
crash

that

she

ingested

alcohol

and

Xanax

that

day;

she

maintains, however, that she did so hours earlier and was no
longer under any influence by the time she was driving.

The

Court accepts for purposes of the present motion that Turner was
not “intoxicated” at the time of the wreck.

But Turner did not

point to evidence to create a genuine fact dispute on whether
the officers had arguable probable cause to believe she drove
under the influence of alcohol and Xanax.

Rather, the present

record establishes that witnesses told the officers that Turner
admitted

to

ingesting

believed

they

smelled

beer

and

Xanax,

alcohol

on

and

Turner's

that

the

officers

breath.

Thus,

reasonable officers in those circumstances could believe that
probable cause existed to arrest Turner for driving under the
influence.

Accordingly, to the extent Turner asserts a claim

based upon her being arrested without sufficient cause, Ochoa is
entitled to qualified immunity for any claim that he violated
Turner’s Fourth Amendment rights by arresting her.
Turner has also failed to show that Ochoa’s use of force
violated clearly established law.

The cases Turner relies on

are factually distinguishable in that they involve plaintiffs
7

whose actions would not appear to a reasonable officer to be
resisting arrest.

See, e.g., Stephens v. DeGiovanni, 852 F.3d

1298, 1326 (11th Cir. 2017) (“[The plaintiff] complied with all
[the deputy’s] investigation questions and was not resisting or
attempting to flee.”); Vinyard v. Wilson, 311 F.3d 1340, 1348
(11th Cir. 2002) (“there is no indication that [the plaintiff]
actively resisted the initial arrest or attempted to flee at any
time. Moreover, at the time of the force during the jail ride,
[plaintiff] was under arrest and secured with handcuffs and in
the back seat of the patrol car.”).

By contrast, Turner does

not dispute her witness’s account that she told Ochoa she was
not going with him to jail or anywhere else, and she admits that
she pulled away from him and would not give him her remaining
arm once he handcuffed the other.

Although she did not intend

to resist and withdrew from him instinctively, Ochoa could not
read

her

mind

and

a

reasonable

officer

could

interpret

her

actions as an attempt to resist arrest.
Turner

also

fails

to

show

that

a

broader,

clearly

established principle from prior case law put Ochoa on notice
that his conduct was unlawful.

The factually analogous case law

stands for the principle that “a police officer violates the
Fourth Amendment, and is denied qualified immunity, if he or she
uses gratuitous and excessive force against a suspect who is
under control, not resisting, and obeying commands.”
8

Patel, 959

F.3d at 1343 (quoting Saunders v. Duke, 766 F.3d 1262, 1265
(11th Cir. 2014)).
For example, the Court in Patel found that the law was
clearly

established

that

using

a

leg

sweep

to

take

down

an

elderly man was inappropriate when, according to his version of
events, he was not resisting arrest or attempting to flee.
at 1343-44.

Id.

The plaintiff in Patel was totally compliant, and

the only evidence that could possibly be construed as resistance
was that he adjusted his foot “at most an inch to the side”
while being searched, to maintain his balance.

Id. at 1335.

Cases like Patel, which embody this broad principle that
force

is

excessive

when

a

suspect

is

not

resisting

arrest,

contrast with cases like Horn v. Barron, 720 F. App’x 557 (11th
Cir. 2018) (per curiam).

There, a panel of the Eleventh Circuit

found that an officer’s use of a straight arm bar takedown to
handcuff

a

suspect

was

not

gratuitous

or

excessive

when

she

admitted she pulled her arm away from the officer while he tried
to arrest her.

Horn, 720 F. App’x at 564.

A reasonable officer

could interpret the suspect's pulling her arm away as resisting,
especially
officer.

since

she

Id. at 565.

was

also

shouting

obscenities

at

the

This was true even though the takedown

resulted in the suspect’s arm breaking when she hit the ground.
Id. at 560.

The panel’s analysis was also not swayed by the

fact that the suspect claimed she “pulled her arm away from [the
9

officer] as a reflex to his touch and was not resisting him.”
Id. at 563.

Because the suspect's actions could be construed by

a reasonable officer as resisting arrest, the officer’s use of
force was not gratuitous or excessive, and he was entitled to
qualified immunity.

Id. at 565.

The facts here are closer to those in Horn than those in
Patel.

Like the plaintiff in Horn, Turner admits she pulled her

arm away from Ochoa and does not dispute Magnus’s account that
she was yelling and cursing at him.

Therefore, as the panel

concluded in Horn, here a reasonable officer could conclude that
Turner

was

resisting.

Because

a

reasonable

officer

could

believe that Turner was resisting, her claim is not encompassed
by

the

broader,

exercised

against

clearly
a

established

non-resisting

principle

suspect

is

that

force

gratuitous

and

excessive.
Finally, this is also not a case of obvious clarity.

The

facts of Turner’s arrest are strikingly similar to those of the
arrest in Horn, where a panel of the Eleventh Circuit found that
a takedown which broke the suspect’s arm was not excessive.
at

564.

Turner

has

not

demonstrated

that

every

Id.

reasonable

officer in Ochoa’s position would inevitably conclude the force
was

unlawful.

In

conclusion,

Turner

cannot

show

that

Ochoa

violated clearly established law under any of the three methods
of doing so, and so Ochoa is entitled to qualified immunity.
10

CONCLUSION
For

the

foregoing

reasons,

Ochoa’s

motion

for

summary

judgment (ECF No. 14) is granted.
IT IS SO ORDERED, this 5th day of February, 2024.
S/Clay D. Land
CLAY D. LAND
U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

11