DYKSMA et al v. PIERSON et al

Filing 48

ORDER granting in part and denying in part 25 Motion for Summary Judgment; granting 30 Motion for Leave to File. Ordered by US DISTRICT JUDGE CLAY D LAND on 07/16/2018 (CCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
GREG DYKSMA, TAMMY DYKSMA, and
THE ESTATE OF NICHOLAS DYKSMA,

*
*

Plaintiffs,
*
vs.
*
TOMMY PIERSON, JOE HARMON,
HEATH DAWSON, WILLIAM
STURDEVANT, and MIKE JOLLEY,

CASE NO. 4:17-CV-41 (CDL)

*
*

Defendants.
*
O R D E R
Eighteen-year-old
County

sheriff’s

Nicholas

deputy,

Dyksma

Tommy

died

Pierson,

after

pinned

a

him

Harris
to

the

pavement and used his knee to apply compression to Nicholas’s
neck, once for a period of twenty seconds while Nicholas was
being

handcuffed

seventeen

seconds

incapacitated,
brought
estate
against

and

this

his

after

and

no

action

against

searched,

Pierson

fellow

Nicholas

longer

on

and

his

deputies,

was

of

a

period

of

and

excessive

Harmon,

Heath

of

physically

Nicholas’s

themselves

use

Joe

for

handcuffed,

resisting.

behalf
for

later

parents

Nicholas’s
force

and

Dawson,

and

William Sturdevant, for their failure to intervene to stop the
excessive force.

They assert claims against these Defendants in

their individual capacities under 42 U.S.C. § 1983 for violation
of the Fourth Amendment, as well as claims under Georgia law.

Plaintiffs
against

also

Harris

capacity.

assert
County

supervisory

Sheriff

Defendants

Plaintiffs’ claims.

§ 1983

seek

Mike

Jolley

summary

liability
in

his

judgment

claims

individual

on

all

of

Defendants assert qualified immunity as to

the federal law claims and official immunity under Georgia law
as to the state law claims.
The

fundamental

issue

for

Plaintiffs’

§ 1983

Fourth

Amendment excessive force claim against Pierson is whether he
violated clearly established law when he used potentially deadly
force (knee to the neck) after Nicholas was handcuffed, fully
restrained, and physically incapacitated.

As explained in the

remainder of this order, the Court finds that he did.
summary

judgment

motion

(ECF

No.

25)

is

denied.

Thus, his
The

Court

further finds, however, that the other deputies did not violate
clearly established law when they failed to intervene during
Pierson’s

application

Accordingly,

Dawson,

of

this

Harmon,

and

clearly
Sturdevant

excessive
are

force.

entitled

to

qualified immunity as to Plaintiffs’ § 1983 claims, and their
summary judgment motion is granted as to these claims.

Finally,

as to Plaintiffs’ supervisory liability claim against Sheriff
Jolley,

Plaintiffs

did

not

point

to

sufficient

evidence

to

create a genuine factual dispute on whether he participated in
or

had

a

policy

that

caused

Pierson’s

excessive

Therefore, he is also entitled to summary judgment.

2

force.

The Court also denies summary judgment as to Plaintiffs’
battery and Georgia constitutional claims against Pierson but
grants summary judgment as to the rest of Plaintiffs’ state law
claims.

Plaintiffs’ motion to amend their complaint to comport

with the facts adduced during discovery (ECF No. 30) is granted.
Pierson,

the

only

Defendant

remaining

after

today’s

rulings,

shall be permitted to have his expert on cause of death amend
his expert report in light of the amended complaint, provided
that he does so within twenty-one days of service of the amended
complaint.
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.

3

Id.

FACTUAL BACKGROUND
Viewed

in

the

light

most

favorable

record reveals the following facts.

to

Plaintiffs,

the

The present record includes

a video recording of the incident, and in determining whether
there is a genuine fact dispute, the Court must view “the facts
in

the

light

depicted

by

the

video[]”

and

may

not

adopt

a

version of the facts that is “utterly discredited” by the video.
Scott v. Harris, 550 U.S. 372, 380-81 (2007).
At

approximately

1:30

a.m.

on

August

31,

2015,

police

officers and emergency medical personnel responded to the Circle
K

on

Airport

Thruway

in

Columbus,

Georgia

to

investigate

a

report of a person slumped over the wheel of a pickup truck.
When they arrived, they found Nicholas Dyksma in the driver’s
seat of the truck.

The officers and emergency medical personnel

tried to check on Nicholas, but Nicholas started the truck and
took off.

Columbus police officers pursued Nicholas and saw him

run several red lights, drive in an erratic manner and above the
speed limit, veer into the wrong lane, and ignore the officers’
lights and siren.1

Because Nicholas was driving on Highway 27

toward Harris County, the Columbus police had the 911 dispatcher

1

Plaintiffs do not dispute that the Columbus police report supports
this statement, but Plaintiffs object to these fact statements as
immaterial because Defendants were not aware of these facts or of the
precise reasons why Columbus police officers pursued Nicholas.
The
Court considers these facts for background purposes only.

4

notify the Harris County Sheriff’s Office that an unsafe driver
failed to stop for police and was heading into Harris County.
Defendants

Tommy

Pierson,

Joe

Harmon,

Heath

Dawson,

and

William Sturdevant were on duty as patrol deputies with the
Harris

County

Sheriff’s

office.

They

received

a

radio

transmission from Harris County 911 that a small gray Toyota
pickup

truck

was

being

pursued

police

officers

northbound on Highway 27, coming toward Harris County.

The four

deputies went to assist.
his

blue

increased

lights
his

and

Columbus

Pierson saw the truck and activated

siren.

speed.

by

Nicholas

Nicholas

did

swerved

not

into

stop,

the

and

wrong

he

lane

several times during the pursuit.
Pierson continued to pursue Nicholas, followed by Harmon.
Sturdevant

informed

the

other

deputies

that

“stop sticks” to try to stop the gray truck.
the

stop

sticks,

and

his

speed

decreased.

he

would

deploy

Nicholas ran over
Pierson

got

his

patrol car ahead of Nicholas’s truck, and he and Harmon tried to
box

in

Nicholas.

Nicholas

accelerated

to

pass

Pierson

and

struck the side of Pierson’s patrol car; then Pierson forced
Nicholas’s pickup truck off the road.

Pierson Decl. ¶ 11, ECF

No. 25-1; Harmon Decl. ¶¶ 6-7, ECF No. 25-2; see also Pl.’s

5

Resp. to Defs.’ Mot. for Summ. J. Ex. A, Dawson Dash Cam Video,
ECF No. 34-3 (“Dawson Dash Cam”).2
The

truck

shoulder.
out.

came

to

rest

facing

north

on

the

southbound

Harmon and Pierson stopped their patrol cars and got

Harmon approached the driver’s door and another deputy

approached the passenger door.

Both doors were locked, and the

truck’s engine was still running.

Harmon commanded Nicholas to

show his hands and get out of the truck.
out of the truck.

Nicholas did not get

Dawson broke the driver’s window with a

baton, then Harmon deployed his Taser on Nicholas.
lurched

forward

into

a

ditch.

Nicholas

passenger’s side of the front seat.

fell

The truck

over

onto

the

Dawson broke the passenger

window and removed Nicholas from the truck.

Around that time,

Sturdevant arrived at the scene.
Pierson, Sturdevant, and Dawson placed Nicholas face down
on

the

shoulder

of

the

road

while

Harmon

remained

on

the

driver’s side of the truck and disconnected the wires from his
2

Plaintiffs controvert this fact statement, contending that the dash
cam video indicates otherwise.
Dawson was driving southbound on
Highway 27, and the video from his dash cam shows a pickup truck and
two patrol cars coming toward him. Just before the first patrol car
and the pickup truck got to the front of Dawson’s car, the pickup
truck passed the patrol car.
Dawson Dash Cam 2:11:14-2:11:15. Both
vehicles were out of the dash cam’s view for a few seconds until
Dawson turned his vehicle around. By that time, the pickup truck was
off the road, facing north on the southbound shoulder.
Id. at
2:11:26. This video does not contradict Defendants’ evidence that the
pickup truck struck the side of Pierson’s patrol car and then Pierson
forced the pickup truck off the road.
Plaintiffs did not cite any
other evidence to contradict Defendants’ evidence, so there is no
genuine fact dispute on this point.

6

Taser.

Nicholas was groaning, and it appeared to the deputies

that he was high on something.
began

to

search

restrained
heavily.
placing

his

Nicholas’s

Dawson handcuffed Nicholas and

pockets,
lower

and

body.

Sturdevant
Nicholas

physically

was

breathing

Pierson physically restrained Nicholas’s upper body by
his

right

twenty seconds.3

knee

on

Nicholas’s

neck

for

approximately

Dawson Dash Cam 2:12:46-2:13:07.

initially screamed, then groaned for a few seconds.
got up, Nicholas was no longer groaning audibly.

Nicholas
As Pierson

By that point,

Nicholas’s hands were cuffed behind his back, and he was no
longer struggling or otherwise resisting.

Dawson returned to

the driver’s side of the truck, and Harmon went over to where
Sturdevant and Pierson were restraining Nicholas.

Pierson moved

to Nicholas’s other side, and he and Sturdevant turned Nicholas
over to search his waistband.

Nicholas did not struggle or

resist.

be

His

incapacitated.

body

appeared

to

limp,

and

he

was

clearly

Pierson and Sturdevant placed Nicholas back in a

prone position, and Pierson again placed his knee on Nicholas’s
neck, pressing it to the ground for another seventeen seconds.
Id. at 2:13:16-33.

Nicholas did not struggle or resist.

He did

lift his head when Pierson briefly relieved the pressure on his
3

Pierson contends that he placed his knee on top of Nicholas’s “upper
back, near the lower neck area.”
Pierson Decl. ¶ 20.
Based on the
video, Pierson’s knee was on Nicholas’s neck for at least part of the
time, although the exact placement of Pierson’s knee is obscured for
several seconds. Dawson Dash Cam 2:12:46-2:13:07.

7

neck, but he did not appear to move otherwise.

Harmon observed

for the first few seconds and then returned to Nicholas’s truck.
Sturdevant resumed restraining Nicholas’s lower body by placing
his knee on Nicholas’s buttocks and his hand on Nicholas’s back;
then Pierson stood.

Sturdevant and Pierson both stated that

Nicholas was making sounds during this time and was not having
trouble breathing.

Pierson Decl. ¶ 25; Sturdevant Decl. ¶¶ 9-

10, ECF No. 25-4.4

Sturdevant kept his hand on Nicholas’s back

for several more seconds.

A deputy called for emergency medical

personnel.
The

deputies

unresponsive.
that

Nicholas

shallow.
side.

soon

realized

that

Nicholas

had

become

Dawson went back to assist Sturdevant and noticed
was

unconscious

and

that

his

breathing

was

Dawson suggested that Nicholas be turned onto his

The deputies turned Nicholas onto his side and said, “Hey

Nicholas! Open your eyes, Nick!” Dawson Dash Cam 2:15:47-53.

A

deputy asked if Nicholas was still alive, and the response was,
“Carotid’s going.

Going quick.”

Id. at 2:15:57-2:16:04.

deputies continued telling Nicholas to wake up.
“Come on, breathe!

You got it!

“He just took a breath.”

Breathe!”

The

A deputy said,

Then a deputy said,

A deputy placed his hand on Nicholas’s

4

Plaintiffs controvert this fact statement because “at some point” the
breathing and sounds stopped. Plaintiffs did not point to a specific
point on the video when they contend it is obvious that Nicholas
stopped breathing.
Based on the Court’s review, Nicholas was still
moving his head for a while after Pierson got up the second time.
Dawson Dash Cam 2:13:33-2:15:10.

8

neck, apparently feeling for a pulse.
he’s

got

some

2:17:15.

kind

of

going.”

Id.

at

2:16:58-

The deputies asked the emergency medical personnel to

speed up their response.
At

arrhythmia

Someone said, “Looks like

2:20

breathing.

a.m.,

a

Id. at 2:17:34-44.
deputy

asked

Id. at 2:20:09-11.

if

Nicholas

was

still

Two deputies examined him and

could not find a pulse, and a deputy radioed for an estimated
time of arrival for emergency medical personnel, explaining that
they could not find Nicholas’s pulse.

Id. at 2:20:23-42.

One

deputy asked if they should start doing compressions and asked
another deputy if he could feel a pulse; both of them stated
that they could feel a faint pulse.
deputy

asked

twice

if

Nicholas

was

Id. at 2:21:03-09.
still

breathing.

A
The

deputies concluded that Nicholas was not breathing, and they
uncuffed

him

compressions.

and

moved

him

to

a

flat

Id. at 2:22:09-2:23:53.

area

and

began

chest

Harris County emergency

medical personnel arrived several minutes later and transferred
Nicholas to Midtown Medical Center, but he could not be revived.
Shortly after Nicholas’s death, Defendant Mike Jolley, the
Harris

County

incident.

Sheriff,

reviewed

the

dash

cam

video

of

the

He concluded that the deputies’ actions, including

Pierson’s use of his knee to restrain Nicholas, were consistent
with the Harris County Sheriff’s Office use of force policy.
That

policy

permits

non-deadly

9

force

“[w]hen

making

lawful

arrests

and

searches,

overcoming

resistance

to

searches, and preventing escapes from custody.”

arrests

or

Defs.’ Mot. for

Summ. J. Ex. F, Harris Cty. Use of Force Policy § VII, ECF No.
25-6.

The policy further states that “[w]hen use of force is

justified

it

is

necessary

to

use

only

that

amount

of

force

necessary to overcome the resistance that is being used against
the [deputy].”

Id.

The policy also permits deadly force under

circumstances that undisputedly do not apply here.
Dr.

Natasha

pathologist,
prepared

Grandhi,

performed

a

report.

a

an

Georgia
autopsy

That

report

Bureau
of

of

Investigation

Nicholas’s

lists

four

body

and

pathological

diagnoses: (1) prone position and compression of the neck and
torso;

(2)

deployment

of

the

barbs

of

an

electroconductive

device; (3) acute methamphetamine intoxication; and (4) a heart
defect called myocardial bridging.

Dr. Grandhi opined that each

of these diagnoses may have contributed to Nicholas’s death, but
she could not state to a reasonable degree of medical certainty
that any one of them alone was the cause of death.
concluded that Nicholas’s death was a homicide.

Dr. Grandhi

Under “cause of

death,” Dr. Grandhi stated, “Sudden death during an altercation
with law enforcement, after deployment of an electroconductive
device,

with

prone

positioning,

compression

torso, and acute methamphetamine intoxication.”

of

the

neck

and

Defs.’ Mot. for

Summ. J. Ex. I, Autopsy Report 5 (Dec. 11, 2015), ECF No. 25-7.

10

Plaintiffs’ medical expert, Dr. Kris Sperry, opined that
the pressure to Nicholas’s neck interfered with the functioning
of his vagus nerve and “[p]recipitated a cardiac arrhythmia.”
Sperry Dep. 31:18-22, ECF No. 28.

Defendants’ experts dispute

Dr. Sperry’s opinions, creating a genuine factual dispute as to
the

proximate

Nicholas’s

cause

death

of

to

Nicolas’s

death.

methamphetamine

They

toxicity

and

attribute
his

heart

defect.5
DISCUSSION
I.

Plaintiffs’ § 1983 Claims
A.

Qualified Immunity in the Excessive Force Context

Defendants

assert

that

they

are

immunity on Plaintiffs’ § 1983 claims.
total immunity from suit[.]”
967

(11th

Cir.

2018).

entitled

to

qualified

“Qualified immunity is

Manners v. Cannella, 891 F.3d 959,
This

“immunity

allows

government

officials to ‘carry out their discretionary duties without the
fear

of

personal

liability

or

harassing

litigation.’”

Id.

(quoting Oliver v. Fiorino, 586 F.3d 898, 904 (11th Cir. 2009)).
To be entitled to qualified immunity, the officers first “must
establish

that

they

were

acting

5

within

their

discretionary

Plaintiffs’ expert acknowledges that the neck compression did not
cause asphyxia, which was the cause of death alleged in Plaintiffs’
original complaint.
But because the Court grants Plaintiffs’ motion
to amend their complaint to clarify that the cause of death was
cardiac arrhythmia due to interference with the vagus nerve from the
neck compression, the Court finds Defendants’ motion for summary
judgment based on causation and asphyxia moot.

11

authority during the incident.”
that

the

deputies

discretionary
Plaintiffs

and

Sheriff

authority.

have

Id.

The

established

Here, there is no dispute

Jolley

acted

remaining

that

within

question

qualified

appropriate based on the facts in this case.

is

immunity

their
whether
is

not

Id. at 968.

“The qualified immunity inquiry articulated by the Supreme
Court provides immunity for law enforcement officers ‘unless (1)
they violated a federal statutory or constitutional right, and
(2) the unlawfulness of their conduct was “clearly established
at the time.”’”

Id. (quoting District of Columbia v. Wesby, 138

S. Ct. 577, 589 (2018)).
in

any

order.”

official’s

Id.

“These two components may be analyzed
“Qualified

conduct

does

not

immunity

violate

attaches

clearly

when

an

established

statutory or constitutional rights of which a reasonable person
would have known.”

Kisela v. Hughes, 138 S. Ct. 1148, 1152

(2018) (per curiam) (quoting White v. Pauly, 137 S. Ct. 548, 551
(2017)

(per

incompetent

curiam)).
or

those

It
who

“protects
knowingly

all
violate

but
the

the

plainly

law.”

Id.

(quoting Pauly, 137 S. Ct. at 551).
“The Fourth Amendment’s freedom from unreasonable searches
and seizures encompasses the plain right to be free from the use
of excessive force in the course of an arrest.”
284 F.3d 1188, 1197 (11th Cir. 2002).

Lee v. Ferraro,

Claims for excessive

force in the course of an arrest are properly analyzed under the

12

Fourth Amendment’s “objective reasonableness” standard. Graham
v. Connor, 490 U.S. 386, 395 (1989).

The Supreme Court has long

recognized that “the right to make an arrest or investigatory
stop necessarily carries with it the right to use some degree of
physical coercion or threat thereof to effect it.” Id. at 396.
So, in determining whether the force used during an arrest is
reasonable, the Court generally considers “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.;

accord Lee v. Ferraro, 284 F.3d 1188, 1198 (11th Cir. 2002)
(“Graham dictates unambiguously that the force used by a police
officer

in

carrying

out

an

arrest

must

be

reasonably

proportionate to the need for that force, which is measured by
the severity of the crime, the danger to the officer, and the
risk of flight.”).

The Court must also “examine (1) the need

for the application of force, (2) the relationship between the
need and amount of force used, and (3) the extent of the injury
inflicted.”

Id.

“Use of excessive force is an area of the law ‘in which the
result depends very much on the facts of each case,’ and thus
police

officers

are

entitled

‘squarely

to

qualified

governs’

specific

unless

existing

precedent

issue.”

Kisela, 138 S. Ct. at 1153 (quoting Mullenix v. Luna,

13

the

immunity

facts

at

136 S. Ct. 305, 309 (2015)).

In the Eleventh Circuit, the

relevant

cases

States

precedent

Supreme

Court,

Supreme Court.
1338,

1345

otherwise,

consists
the

of

Eleventh

decided

Circuit,

by
or

the
the

United
Georgia

Leslie v. Hancock Cty. Bd. of Educ., 720 F.3d

(11th
the

Cir.

Court

2013).

cannot

Although

rely

on

Plaintiff

out-of-circuit

argues

cases

to

determine whether it would be clear to a reasonable officer in
Georgia

that

his

conduct

was

unlawful

in

the

situation

he

confronted.
B.

Is Pierson Entitled to Qualified Immunity?

Plaintiffs do not argue that the Harris County deputies
were wrong to pursue and stop Nicholas based on the Columbus
officers’ report of an unsafe driver and their own observations
of his driving.

Plaintiffs also do not challenge the breaking

of the truck windows, the use of the taser, the forcible removal
of Nicholas from the truck, or the placement of Nicholas on the
ground for handcuffing and a safety check.

And they do not

dispute that some degree of force was permissible to restrain
Nicholas

while

safety check.
this

case

is

the

deputies

handcuffed

him

and

performed

a

The only use of force Plaintiffs challenge in
the

neck

compressions

by

Pierson.

Plaintiffs

contend that a reasonable officer in Pierson’s situation would
have known that the force was excessive under the circumstances.

14

It is not clear that all of the neck compressions applied
to

Nicholas

constituted

established law.

excessive

force

under

clearly

The video shows that the first twenty seconds

of neck compressions were done while the deputies were trying to
handcuff Nicholas and conduct a safety check.

The Court cannot

conclude

law

officer

that
would

every
find

objectively
this

use

of

reasonable
force

to

be

enforcement

unlawful.

A

reasonable argument can be made that it was necessary to secure
and restrain Nicholas under the circumstances.
stood

up

after

those

twenty

seconds,

But when Pierson

Nicholas

handcuffed, restrained, and incapacitated.

was

clearly

After that break,

Pierson made the conscious decision to jam his knee back onto
Nicholas’s neck—an act that was unnecessary since Nicholas was
clearly handcuffed, restrained, and incapacitated.
By August 2015, it had long been clearly established that
after a suspect is arrested, handcuffed, and completely secured,
and

after

the

risks

of

danger

and

flight

have

passed,

significant force that is “wholly unnecessary to any legitimate
law enforcement purpose” is excessive.

Lee, 284 F.3d at 1198;

accord Saunders v. Duke, 766 F.3d 1262, 1265 (11th Cir. 2014)
(“We have repeatedly ruled 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.”).

15

The following cases clearly establish this principle:
Saunders

v.

Duke,

766

F.3d

1262

(11th

Cir.

2014):

plaintiff sold oxycodone pills to an undercover officer.

the

After

the sale was complete, officers arrested the plaintiff and told
him not to move, and he “immediately complied with the command
without resisting or attempting to flee.”

Id. at 1265.

The

officers pulled the plaintiff from a vehicle “and pushed him
down on the hot pavement in order to handcuff him.”

Id.

Then

the officers held him down against the hot pavement even though
he was not resisting, posing a threat, or attempting to flee.
The plaintiff told the officers he was getting burned, and he
tried to lift his face off the pavement to keep from getting
burned.
the

One of the officers slammed the plaintiff’s face onto

pavement,

Circuit

and

concluded

plaintiff
that

started
the

bleeding.

“force

The

was

disproportionate, and constitutionally excessive.”

Eleventh

unnecessary,
Id. at 1268.

Hadley v. Gutierrez, 526 F.3d 1324 (11th Cir. 2008): the
plaintiff was high on cocaine when he entered a supermarket and
created a disturbance.
officers

led

the

He was arrested and handcuffed.

plaintiff

from

the

store,

he

asked

As
for

Jehovah’s protection, but he was not struggling or resisting.
One of the officers punched the plaintiff in the stomach.
officer

was

not

entitled

to

16

qualified

immunity

The

because

“gratuitous

use

of

force

when

a

criminal

suspect

resisting arrest constitutes excessive force.”

is

not

Id. at 1330.

Lee v. Ferraro, 284 F.3d 1188 (11th Cir. 2002): an officer
arrested a motorist for honking her horn at a busy intersection.
After she was “arrested, handcuffed, and completely secured” and
“after any danger to the arresting officer as well as any risk
of flight had passed,” the arresting officer took the motorist
to the back of her car and slammed her head against the trunk.
Id. at 1199.
excessive,

This use of force after the arrest “was plainly
wholly

disproportionate.”
Vinyard
officer

v.

unnecessary,

and,

indeed,

grossly

Id. at 1198.

Wilson,

arrested

the

311

F.3d

plaintiff

1340
for

(11th

Cir.

disorderly

obstruction of a law enforcement officer.

2002):

conduct

an
and

He handcuffed the

plaintiff behind her back and placed her in the back of his
patrol car.

There was a partition between the front seat and

the back seat.

On the way to jail, the officer called the

plaintiff a “drunken, skanky whore” and told her she did not
deserve her children.

Id. at 1343.

The plaintiff became upset

and started screaming at the officer.

The officer pulled his

car over, pulled the plaintiff’s head back by her hair, and
sprayed her in the face with pepper spray.

She remained seated

in the back seat with her feet on the floorboard and her hands
cuffed behind her.

The use of the pepper spray was excessive

17

force because the plaintiff “was under arrest for offenses of
minor severity, handcuffed, secured in the back of a patrol car,
and posing no threat to [the officer], herself or the public.”
Id. at 1349.
Priester v. City of Riviera Beach, 208 F.3d 919 (11th Cir.
2000): police officers found a burglary suspect who allegedly
stole $20 worth of snacks from a golf shop.

They ordered him to

get down on the ground and told him that if he did not do so,
they would set a police dog on him.

The suspect complied and

“did not pose a threat of bodily harm to the officers or anyone
else,” but one of the officers released the dog and allowed him
to

attack

the

reasonable

suspect

police

for

officer

two

minutes.

could

believe

Id.
that

at
this

927.
force

permissible given these straightforward circumstances.”

“No
was
Id.;

accord Edwards v. Shanley, 666 F.3d 1289, 1295 (11th Cir. 2012)
(finding
force

that

when

he

an

officer

permitted

used
his

“unconstitutionally

dog

to

attack

[a

excessive

non-resisting

suspect] for five to seven minutes”).
Slicker v. Jackson, 215 F.3d 1225 (11th Cir. 2000): the
plaintiff went to a police station to ask why a trespassing
suspect had been released on bond.

As the plaintiff left the

police station, officers arrested him for disorderly conduct and
“slammed

his

head

against

the

pavement

unconscious” as they tried to handcuff him.

18

and

knocked

Id. at 1227.

him
When

the plaintiff came to, he was handcuffed and placed on the hood
of a car; the plaintiff could not feel his arms, and he slid off
the car and onto the ground.
kicking the plaintiff.

Officers continued beating and

This use of force was excessive because

the plaintiff “was handcuffed and did not resist, attempt to
flee, or struggle with the officers in any way.”
Smith

v.

Mattox,

127

F.3d

1416

(11th

Id. at 1233.
Cir.

1997)

(per

curiam): police officers were investigating an informant’s tip
regarding drug activity at the home of the plaintiff’s mother.
They found the plaintiff in his mother’s front yard, and he ran
away when the officers approached him.

An officer eventually

caught up to the plaintiff and ordered him to get down, and the
plaintiff “docilely submitted.”

Id. at 1418.

As the officer

handcuffed the plaintiff, he placed the plaintiff’s arm in a
position

that

complained.

caused

a

discomfort,

and

the

plaintiff

Then, “with a grunt and a blow,” the officer broke

the plaintiff’s arm.
that

him

reasonable

Id.

The Eleventh Circuit acknowledged

officer

in

the

circumstances

could

have

concluded that before the plaintiff started complying with the
officer’s commands, the plaintiff might present some danger and
that

he

was

a

potential

flight

risk.

And

the

officer

entitled to use some force to handcuff the plaintiff.

was

But if

the plaintiff was “offering no resistance at all,” the force

19

used to handcuff the plaintiff “was obviously unnecessary to
restrain even a previously fractious arrestee.”

Id. at 1420.

Here, after the first twenty seconds of neck compression,
Nicholas was handcuffed and was not resisting or trying to flee.
He became quiet and stopped moving his legs and arms.

By the

time Pierson helped Sturdevant turn Nicholas over to continue
the safety check, Nicholas’s body appeared to be limp.

When the

deputies returned Nicholas to a prone position, Pierson put his
knee back on Nicholas’s neck and pressed it to the ground for
seventeen more seconds.

Pierson briefly relieved the pressure

twice during that time, and Nicholas lifted his head and neck
off

the

ground

slightly

but

did

not

otherwise

move.

The

Eleventh Circuit precedent discussed above clearly established
by August 2015 that after a suspect is subdued, handcuffed, not
resisting, and not a flight or safety risk, officers cannot kick
him, punch him, slam his head into a car or onto hot pavement,
use pepper spray on him, or use so much force to handcuff him
that it breaks his arm.

An obvious corollary is that an officer

cannot use his knee and body weight to press to the ground the
neck of an incapacitated, handcuffed, non-resisting arrestee.
It should have been clear to the deputies in this case that it
would be unconstitutional to use such force on Nicholas.
The Court acknowledges that it has not been pointed to any
relevant precedent that is precisely on point with the facts of

20

this case.
his

knee

seventeen
directly
existing

No case has been located in which an officer jammed
onto

the

seconds.
on

point

neck

of

an

But

the

law

for

precedent

a

right

must

have

incapacitated
“does

to

be

not

require

clearly

placed

constitutional question beyond debate.”
1152 (quoting Pauly, 137 S. Ct. at 551).

the

arrestee
a

for
case

established[;]
statutory

or

Kisela, 138 S. Ct. at
The Court understands

that clearly established law cannot be defined at “a high level
of generality.”

Plumhoff v. Rickard, 134 S. Ct. 2012, 2023

(2014) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 742 (2011)).
To do so would impermissibly avoid “the crucial question whether
the official acted reasonably in the particular circumstances
that he or she faced.”

Id.

To be clear, the Court today does

not simply find that Pierson’s use of force violated the general
standard for excessive force set out in Graham v. Connor and its
progeny.

The Court finds that on the date of Nicholas’s death,

it was beyond debate that a law enforcement officer who jams his
knee onto the neck of a helpless and incapacitated arrestee
violates that arrestee’s Fourth Amendment right to be free from
excessive force.
Defendants argue that the Court should consider the fact
that

the

deputies

had

to

forcibly

stop

Nicholas’s

truck

to

prevent him from endangering others, and that Nicholas initially
did

not

follow

the

deputies’

commands.

21

The

Court

does

not

discount

those

facts

in

looking

at

the

totality

of

the

circumstances to determine whether the force was reasonable, but
the

Court

also

cannot

ignore

how

the

situation

unfolded.

Certainly, no one would dispute that law enforcement officers
are required to assess the circumstances continually as they
evolve.

See

Mattox,

127

F.3d

at

1420

(explaining

that

significant force is unnecessary to restrain even a “previously
fractious arrestee” after he is subdued).

After significant

pressure was applied to Nicholas’s neck during the handcuffing
process, he stopped moving and became silent and limp.

When

Pierson stood up following the first neck compression, he had
time to look at Nicholas and see that he was incapacitated.
Pierson

consciously

decided

ground again anyway.

to

press

Nicholas’s

neck

to

the

Defendants argue that Pierson was simply

restraining Nicholas and that it was reasonable for him to do so
because

Defendants

still

subjectively

might try to resist or flee.

believed

that

Nicholas

But Defendants disregard how the

situation actually played out: Nicholas was immobile, subdued,
and largely unresponsive by the time he was handcuffed.

And

using a knee and body weight to press someone’s neck to the
ground—an act that can result in serious injury or death (and
did in this case, if Plaintiffs’ expert is to be believed)—is
not simple restraint.
Nicholas

was

The deputies acknowledge that by the time

handcuffed

and

incapacitated,

22

they

were

not

authorized to tase him or punch him or kick him or hit him with
a baton.

It was likewise unnecessary to press his neck to the

ground with a knee.
Pierson argues that Lewis v. City of West Palm Beach, 561
F.3d 1288 (11th Cir. 2009), entitles him to qualified immunity.
In Lewis, police officers restrained a disoriented man who kept
trying to run into traffic.

Once officers got the man to the

ground, an officer put his knee on the man’s neck and upper back
for about a minute so the man could be handcuffed and put in leg
restraints.

The man was still breathing when officers attempted

to

in

put

him

a

seated

position

after

the

neck

compression

ended, but the man would not sit up or heed requests that he
calm down.

The officers decided to attach the ankle restraint

to the handcuffs with a hobble cord and essentially “hogtied”
the man with his hands and feet close together behind his back.
The officers soon realized that the man was unconscious, and
they removed the restraints and tried to resuscitate him, but he
died.

An expert concluded that the cause of death was asphyxia

caused by neck compression.
The

Eleventh

Circuit

in

Lewis

entitled to qualified immunity.

found

the

officers

were

The Court explained that the

officers’ use of force was not constitutionally impermissible
because the man continued to be “agitated and uncooperative,”
had

“only

a

tenuous

grasp

on

23

reality,”

did

not

remain

compliantly restrained, refused to sit up, and was unable to
stay calm.

Id at 1292.

overlooks

the

situation

confronting

In arguing that Lewis controls, Pierson

crucial

distinction
him.

between

Unlike

the

Lewis

detainee

and
in

the

Lewis,

Nicholas was quiet, restrained, and possibly unconscious by the
time Pierson placed his knee on Nicholas’s neck the second time.
The video clearly shows him to be physically incapacitated and
helpless.

Lewis does not create any “haze” that makes the line

between acceptable and excessive force unclear.

It would be

apparent to a reasonable law enforcement officer that a knee to
the neck of an uncooperative resisting detainee is far different
than a knee to the neck of someone who is clearly restrained,
cooperative, and incapacitated.

Pierson is not entitled to

qualified immunity.
C.

Are the Other Deputies Entitled to Qualified Immunity?

Plaintiffs’ claims against Dawson, Harmon, and Sturdevant
rest on the theory that they were all in a position to intervene
in Pierson’s use of force but failed to do so.
established

“that

an

officer

can

be

liable

It is clearly
for

intervene when another officer uses excessive force.”
208 F.3d at 924.

failing

to

Priester,

This liability “only arises when the officer

is in a position to intervene and fails to do so.”

Id. at 924-

25 (finding that an officer was in a position to intervene when

24

he watched his colleague’s police dog attack a non-resisting
suspect for two minutes but did nothing to stop it).
The Court has concluded that Pierson used excessive force
when he jammed his knee onto Nicholas’s neck the second time for
approximately seventeen seconds.
administered without warning.

This application of force was
The Court finds that given the

limited duration of the force by Pierson and the unforseeability
of Pierson’s reapplication of his knee to Nicholas’s neck, the
other

deputies

did

not

violate

clearly

established

law

by

failing to intervene under the specific circumstances presented
to

them.

Accordingly,

Dawson,

Harmon,

and

Sturdevant

are

entitled to qualified immunity, and their motion for summary
judgment is granted.
D.

Is Sheriff Jolley Entitled to Qualified Immunity?

Plaintiffs
Jolley,

arguing

also

assert

that

he

a

§ 1983

should

be

claim
held

against
liable

Sheriff
under

a

supervisory liability theory.

“[S]upervisory officials are not

liable

unconstitutional

under

§ 1983

for

the

acts

of

their

subordinates on the basis of respondeat superior or vicarious
liability.” Keith v. DeKalb Cty., 749 F.3d 1034, 1047 (11th Cir.
2014) (quoting Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir.
2003)).

“Instead, to hold a supervisor liable a plaintiff must

show that the supervisor either directly participated in the
unconstitutional

conduct

or

that

25

a

causal

connection

exists

between the supervisor’s actions and the alleged constitutional
violation.”

Id. at 1047-48.

Here, there is no contention that Sheriff Jolley directly
participated

in

the

events

giving

rise

to

Nicholas’s

death.

Instead, Plaintiffs assert that there is a causal connection
between Sheriff Jolley’s actions and the alleged constitutional
violation.
when

a

“The necessary causal connection can be established

history

supervisor

on

of

widespread

notice

of

abuse

the

need

puts

to

deprivation, and he fails to do so.”
Cottone,

326

connection
policy

F.3d

may

. . .

be

at

1360).

established

result[s]

the

correct

responsible
the

Id. at 1048 (quoting

“Alternatively,
when

in

a

alleged

the

supervisor’s

deliberate

causal

custom

indifference

or
to

constitutional rights or when facts support an inference that
the supervisor directed the subordinates to act unlawfully or
knew that the subordinates would act unlawfully and failed to
stop

them

from

doing

so.”

Id.

(quoting Cottone, 326 F.3d at 1360).

(alterations

in

original)

Plaintiffs do not assert

that Sheriff Jolley directed the deputies to act unlawfully or
knew that they would do so but failed to stop them.
Sheriff

Jolley

to

be

held

liable,

“he

must

have

So, for
failed

to

correct a widespread pattern of constitutional violations or he
must [have] adopted a custom or policy that deprived [Nicholas]
of his constitutional rights.”

Id.

26

Plaintiffs

did

not

point

to

a

widespread

pattern

of

constitutional violations that Sheriff Jolley failed to correct.
Rather, Plaintiffs’ claim against Sheriff Jolley is based solely
on his statement that he concluded, based on the dash cam video,
that

the

deputies

acted

in

accordance

with

his

policy.

Plaintiffs argue that a reasonable juror could conclude from
this statement that Sheriff Jolley’s policy was to allow his
deputies

to

use

gratuitous

force

on

incapacitated

arrestees,

even though such a policy would directly conflict with Sheriff
Jolley’s written use of force policy, which only permits “that
amount of force necessary to overcome the resistance that is
being used against the [deputy].”

Use of Force Policy § VII.

The Court is not convinced that a reasonable juror could
find that Sheriff Jolley’s statement was a repudiation of his
written use of force policy such that the jury could conclude
that

he

adopted

constitutional
Jolley’s

a

policy

rights.

statement

that

Rather,

suggests

that

deprived
taken
he

Nicholas
context,

in

did

of

Sheriff

not

believe,

his

as

a

factual matter, that Pierson used more force than was necessary
under the circumstances.
sufficient
supervisory

evidence

to

liability

Because Plaintiffs did not present
establish

for

Sheriff

entitled to summary judgment.

27

a

genuine

Jolley,

fact

Sheriff

dispute

on

Jolley

is

II.

State Law Claims
Plaintiffs assert state law claims against Defendants for

battery,

negligence,

Constitution’s

provisions

during arrests.
support

such

and
on

violations
searches

of

and

the

seizures

Georgia
and

abuse

Defendants contend that the evidence does not

claims

and

that

they

are

entitled

to

official

immunity.
A.

State Law Claims Against Pierson

All of Plaintiffs’ claims against Pierson are based on the
use of his knee to compress Nicholas’s neck.

Pierson contends

that Plaintiffs did not present enough evidence to support the
battery and Georgia constitutional claims.

He also asserts that

he is entitled to official immunity on all state law claims.
Under Georgia law, a “physical injury done to another shall
give a right of action to the injured party.”
13.

O.C.G.A. § 51-1-

Pierson contends that he is entitled to summary judgment on

the battery claim because Georgia law permits a law enforcement
officer

to

necessary

use
to

“such

reasonable

apprehend

and

nondeadly

arrest

a

force

as

suspected

may

be

felon

or

misdemeanant.”

O.C.G.A. § 17-4-20(b); accord O.C.G.A. § 51-1-13

(recognizing

battery

a

claim

unless

the

person

injury “is justified under some rule of law”).

causing

the

As discussed

above, though, there is enough evidence for a factfinder to
conclude that Pierson used unreasonable force to apprehend and

28

arrest

Nicholas,

so

this

defense

does

not

mandate

summary

judgment on Plaintiffs’ battery claim.
In addition to their battery claim, Plaintiffs claim that
Pierson
searches,

violated

the

seizures,

and

Georgia

Constitution’s

warrants.

This

identical to the Fourth Amendment.

provision

provision that prohibits abuse during an arrest.

See Ga. Const.

§ 1,

¶ XVII.

violated

the

Plaintiffs also
Constitution’s

1,

Pierson

nearly

Georgia

Art.

that

is

on

Compare Ga. Const. of 1983

Art. 1, § 1, ¶ XIII with U.S. Const. amend. IV.
contend

provision

Plaintiffs’

claims

under

the

Georgia

Constitution are largely duplicative of their Fourth Amendment
claims, and Pierson asserts the same defenses he asserted to
those claims.

As discussed above, the Court rejected those

arguments, so they also do not support summary judgment on the
Georgia constitutional claims.6
Pierson argues that even if Plaintiffs presented sufficient
evidence

to

support

their

battery

and

Georgia

constitutional

claims, he is entitled to official immunity on these claims.
Law enforcement officers are entitled to official immunity on
6

In a footnote, Defendants point out that at least one panel of the
Georgia Court of Appeals has cast doubt on whether a plaintiff may
bring claims directly under the Georgia Constitution.
See Draper v.
Reynolds, 629 S.E.2d 476, 478 n.2 (Ga. Ct. App. 2006) (noting “that
Georgia does not have an equivalent to 42 U.S.C. § 1983”).
But
another panel of the Georgia Court of Appeals declined to grant
summary
judgment
on
a
plaintiff’s
claims
under
the
Georgia
Constitution.
Porter v. Massarelli, 692 S.E.2d 722, 726–27 (Ga. Ct.
App. 2010). The Court thus assumes for purposes of this motion that
Plaintiffs may assert claims under the Georgia Constitution.

29

tort claims against them for their discretionary acts unless
they acted “with actual malice or with actual intent to cause
injury.”

Kidd

v.

Coates,

518

S.E.2d

124,

125

(Ga.

(quoting Ga. Const. of 1983 Art. 1, § 2, ¶ IX(d)).
‘actual

intent

context

to

plaintiff,

to

mean
not

resulting

in

Boatmen’s

Bank,

cause
‘an

actual

merely

the

injury’

an

intent

intent

claimed

782

has

to

been

cause

do

the

injury.’”

S.W.2d

117,

Id.

121

“The phrase

defined

to

(Mo.

1999)

in

harm

act

tort

to

the

purportedly

(quoting
App.

a

Frame

1989)).

v.
As

discussed above, there is evidence to support a conclusion that
Pierson intentionally pressed Nicholas’s neck to the ground with
his knee after he should have been able to see that Nicholas was
handcuffed, incapacitated, and not resisting.
could

infer

Pierson

is

an
not

actual

intent

entitled

to

to

cause

official

From this, a jury

harm

immunity

to

Nicholas,

on

so

Plaintiffs’

battery and Georgia constitutional claims.
Plaintiffs’

negligence

official immunity challenge.
Pierson

intentionally

claim

cannot

survive

Pierson’s

If Plaintiffs are asserting that

used

excessive

force

without

justification, then that claim is properly characterized as a
battery claim.

If Pierson’s use of force was only negligent,

then it follows that the use of force was not done with the
requisite intent to overcome official immunity.

Pierson is thus

entitled to summary judgment on Plaintiffs’ negligence claim.

30

B.

State Law Claims Against the Other Defendants

Plaintiffs

also

assert

state

law

claims

against

Dawson,

Harmon, and Sturdevant, arguing that they used excessive force
against Nicholas without justification.

These claims appear to

be based on these Defendants’ failure to intervene when Pierson
used his knee to compress Nicholas’s neck.

Plaintiffs’ battery

claim against these Defendants fails because Plaintiffs did not
point to any facts to suggest that Dawson, Harmon, or Sturdevant
personally injured Nicholas.
claims

against

Dawson,

And, all of Plaintiffs’ state law

Harmon,

and

Sturdevant

are

barred

by

official immunity because there is no evidence from which a
reasonable

juror

could

conclude

that

they

malice or actual intent to cause injury.

acted

with

actual

The Court thus grants

Defendants’ summary judgment motion as to these claims.
CONCLUSION
As discussed above, the Court denies Defendants’ summary
judgment motion (ECF No. 25) as to Plaintiffs’

§ 1983 claim

against Pierson for violation of the Fourth Amendment.

The

Court also denies Pierson’s motion for summary judgment as to
Plaintiffs’

state

law

constitutional

and

battery

claims.

Summary judgment is granted to Pierson on Plaintiffs’ remaining
state law claims.

Summary judgment is also granted as to all

claims asserted against Defendants Jolley, Dawson, Harmon, and
Sturdevant.

Accordingly,

the

31

only

remaining

claims

are

Plaintiffs’

claims

against

Pierson

pursuant

to

§ 1983,

the

Georgia Constitution, and Georgia law of battery.
Plaintiffs’ motion to amend their complaint to comport with
the evidence adduced during discovery (ECF No. 30) is granted.
Plaintiffs shall electronically file an amended complaint within
seven days of today’s Order.

If Defendant wishes to amend his

expert’s report based on any new allegations in the

amended

complaint related to the alleged cause of Nicholas’s death, he
must do so within twenty-one days of service of the amended
complaint.
IT IS SO ORDERED, this 16th day of July, 2018.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

32