Opinion

Encarnacion v. Judd

Court
District Court, M.D. Florida
Filed
Oct 31, 2019
Cited by
0 cases
Authority
More cited than 19.7%

courts free to address inquiry in most appropriate order

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The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

BRYAN ENCARNACION,

Plaintiff,

v. Case No. 8:18-cv-2527-T-02AAS

DUSTIN TARROT WADE,

Defendant.

___________________________/

ORDER

Before the Court is Deputy Wade’s Motion to Dismiss Fifth Amended

Complaint with Supporting Memorandum of Law, Dkt. 21, which Mr. Encarnacion

opposes, Dkt. 23. Upon consideration, the motion to dismiss will be granted in

part and denied in part.

I. Allegations of the Fifth Amended Complaint

Mr. Encarnacion alleges that on September 12, 2017, he was arrested by

Deputy Wade. Dkt. 15 at 4. During the arrest, Deputy Wade shot Mr. Encarnacion

with a tazer gun and placed him in handcuffs. Id. After Mr. Encarnacion was

examined by an emergency medical technician, Deputy Wade yanked Mr.

Encarnacion up off the ground by grabbing the handcuffs, which caused fractures

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to Mr. Encarnacion’s wrist and arm. Id. Mr. Encarnacion contends that Deputy

Wade violated his rights under the Eighth Amendment by using excessive force

when he lifted him off the ground only by the handcuffs.

II. Standard of Review

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead

sufficient facts to state a claim that is “plausible on its face.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (citation omitted). In considering the motion, the court

accepts all factual allegations of the complaint as true and construes them in the

light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284

(11th Cir. 2008) (citation omitted).

III. Summary of the Arguments

Deputy Wade argues that the Fifth Amended Complaint should be dismissed

because: (1) the Eighth Amendment is inapplicable to this case; (2) to the extent it

alleges a claim of excessive force in violation of the Fourth Amendment, it fails to

state a claim upon which relief may be granted; and (3) he is entitled to qualified

immunity.

Mr. Encarnacion argues that the motion to dismiss should be denied “based

on medical evidence and witness statements validating [his] claims of excessive

force.” Dkt. 23 at 1.

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IV. Analysis

A. The Eighth Amendment is inapplicable to this case

At the outset, the Court must “identify the specific constitutional right

allegedly infringed by the challenged application of force.” Graham v. Connor,

490 U.S. 386, 394 (1989). The Supreme Court has made clear, “all claims that

[governmental authorities] have used excessive force . . . in the course of an arrest,

investigatory stop, or other ‘seizure’ . . . should be analyzed under the Fourth

Amendment and its ‘reasonableness' standard, rather than under a ‘substantive due

process' approach.” Graham, 490 U.S. at 395; see also Garrett v. Athens–Clarke

County, Georgia, 378 F.3d 1274, 1279 n. 11 (11th Cir.2004) (where “[t]he

excessive force claims arise from events happening in the course of the arrest,” the

claims must be analyzed under the Fourth Amendment). Therefore, because

Deputy Wade’s use of force was in the course of an arrest, Mr. Encarnacion’s

claim that Deputy Wade used excessive force must be analyzed under the Fourth

Amendment. Accordingly, Mr. Encarnacion’s claim under the Eighth

Amendment will be dismissed.

B. The Fifth Amended Complaint states a claim for excessive force

under the Fourth Amendment

Deputy Wade argues that Mr. Encarnacion has failed to state a cause of

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action for a use of excessive force because “[a]s a matter of law, yanking the

Plaintiff off the ground is not excessive force.” Dkt. 21 at 4. He contends that

he used “ordinary and reasonable force,” and said force “is not transformed into

excessive force” even though it caused fractures to Mr. Encarnacion’s wrist and

arm. Id. at 6.

The use of excessive force in making an arrest constitutes a violation of the

Fourth Amendment. See Davis v. Williams, 451 F.3d 759, 767 (11th Cir.2006).

Whether the amount of force used was reasonable or excessive is determined

objectively “from the perspective of a reasonable officer on the scene, rather than

with 20/20 vision of hindsight” and requires “careful attention to the facts and

circumstances of each particular case.” Priester v. City of Riviera Beach, 208

F.3d 919, 924 (11th Cir.2000) (quoting Graham v. Connor, 490 U.S. 386 (1989)).

The factors to be analyzed include: (1) the severity of the crime at issue, (2)

whether the suspect poses an immediate threat to the safety of the officers or

others, and (3) whether he is actively resisting arrest or attempting to evade arrest

by flight. Priester, 208 F.3d at 924; Mercado v. City of Orlando, 407 F.3d 1152,

1157 (11th Cir.2005). The totality of the circumstances is considered “to determine

whether the manner of arrest was reasonable.” Draper v. Reynolds, 369 F.3d 1270,

1277 (11th Cir.2004). “[I]n determining if force was reasonable, courts must

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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. at

1277–78 (quotation omitted). The force exerted by the officer must be “reasonably

proportionate to the need for that force” which is measured by the three factors set

forth in Priester. Lee v. Ferraro, 284 F.3d 1188, 1198 (11th Cir. 2002).

Viewing the factual allegations in the Fifth Amended Complaint in the light

most favorable to Mr. Encarnacion, when Deputy Wade used force to yank Mr

Encarnacion up off the ground, Mr. Encarnacion was restrained in handcuffs.

There are no allegations that Mr. Encarnacion was resisting arrest or attempting to

flee, that he posed a threat to Deputy Wade or others’ safety, that the crime at issue

was severe, or that he refused any orders to stand up from the ground.

A reasonable law enforcement officer in this situation would not believe that

anything more than de minimis force was warranted. Nonetheless, Deputy Wade

grabbed Mr. Encarnacion by the handcuffs and yanked him off the ground with

force sufficient to break bones. That force, as alleged, was excessive. See

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.”); Smith v. Mattox, 127 F.3d

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1416, 1419 (11th Cir.1997) (force sufficient to break the arm of arrestee who had

“docilely submitted” to law enforcement is excessive, and officer not entitled to

qualified immunity). The Court therefore finds that the allegations in the Fifth

Amended Complaint state a violation of the Fourth Amendment.

C. Deputy Wade is not entitled to qualified immunity

Deputy Wade invokes qualified immunity, which protects government

officials “from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person

would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citation

omitted). Qualified immunity allows government officials to “carry out their

discretionary duties without the fear of personal liability or harassing litigation.”

Oliver v. Fiorino, 586 F.3d 898, 904 (11th Cir. 2009) (citation omitted). The

Eleventh Circuit teaches that qualified immunity should be addressed “as early in

the lawsuit as possible” because it is a defense not only from liability, but from

suit. Lee v. Ferraro, 284 F.3d at 1194.

A government official “asserting this defense bears the initial burden of

showing that he was acting within his discretionary authority.” Moore v. Sheriff

of Seminole Cty., 2018 WL 4182120, at *2 (11th Cir. Aug. 30, 2018) (citation and

quotation marks omitted). Here, Mr. Encarnacion does not dispute that Deputy

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Wade was acting within the scope of his discretionary authority. Accordingly,

the burden shifts to Mr. Encarnacion to show that (1) Deputy Wade’s conduct

violated a constitutional right, and (2) the right was clearly established at the time

of the alleged misconduct. Saucier v. Katz, 533 U.S. 194, 201 (2001); see also

Pearson, 555 U.S. at 236 (courts free to address inquiry in most appropriate order).

As evidenced by the above analysis, Mr. Encarnacion has adequately alleged a

violation of the Fourth Amendment. Therefore, the question for this Court in

assessing Deputy Wade’s immunity from damages under § 1983 is whether that

right was clearly established at the time Deputy Wade arrested Mr. Encarnacion.

Gonzalez v. Reno, 325 F.3d 1228, 1233 (11th Cir.2003).

A constitutional violation can be clearly established by showing (1) a

“materially similar case”; (2) pointing to a “broader clearly established principle”

that controls “the novel facts of the situation”; (3) or demonstrating that the

conduct involved in the case “so obviously violates ‘the constitution that prior case

law is unnecessary.” Terrell v. Smith, 668 F.3d 1244, 1255-56 (11th Cir. 2012)

(citations and alterations omitted). An officer yanking an arrestee off the ground

by the handcuffs with force sufficient to break a bone when the arrestee is under

control and not resisting is obviously unacceptable conduct. See Smith, 127 F.3d at

1419–20 (refusing to confer qualified immunity on an arresting officer who

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fractured the arm of the arrestee even though the arrestee had “docilely submitted”

to the officer and was offering no resistance). Such conduct goes beyond the

border between excessive and acceptable force and violates clearly established

rights. See, e.g., Solovy v. Morabito, 375 F. App'x 521, 527 (6th Cir. 2010) (“The

method Sergeant Carroll used to lift Solovy—pulling the chains of handcuffs

secured behind Solovy's back to hoist his body weight—was almost guaranteed to

cause substantial pain, especially to a person with a shoulder injury. Further,

nothing suggests that this was a necessary or even an appropriate way to lift

Solovy. Thus, lifting Solovy from the ground using his handcuff chains would be

plainly unreasonable.”).

Deputy Wade argues that “[a]s a matter of law, yanking Plaintiff off the

ground is not excessive force[,]” and he cites to Thompson v. Fairfield, 2001 WL

36125103, at *5 (N.D. Fla. March 29, 2001) in support. Dkt. 21 at 4. However,

there are crucial differences between this case and the facts presented in

Thompson. In Thompson, the arrestee refused the officer’s orders to get off the

floor and get back up on the couch before she grabbed the arrestee’s handcuffs and

attempted, unsuccessfully, to move him back on the couch. Id. Moreover, there

was no allegation that the grabbing of the handcuffs caused fractures. Id. Here,

the allegations (1) do not indicate that Mr. Encarnacion disobeyed any order to

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stand up off the ground, and (2) show that Mr. Encarnacion was lifted off the

ground solely by the handcuffs, which caused multiple fractures.

In sum, viewing the allegations in the Fifth Amended Complaint in the light

most favorable to Mr. Encarnacion, Deputy Wade used excessive force and thereby

violated Mr. Encarnacion’s rights under the Fourth Amendment. And the right to

be free of excessive force by law enforcement officers during an arrest was clearly

established at the time of the incident. Therefore, because Deputy Wade’s

conduct violated a clearly established constitutional right of which a reasonable

person would have known, he is not entitled to qualified immunity.1

1Deputy Wade is free to again raise qualified immunity at the summary judgment stage.

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Accordingly:

1. Deputy Wade’s Motion to Dismiss Fifth Amended Complaint with

Supporting Memorandum of Law (Dkt. 21) is GRANTED solely to

the extent that Mr. Encarnacion’s claim under the Eighth Amendment

is DISMISSED. The motion is otherwise DENIED. This case

shall proceed solely on Mr. Encarnacion’s claim against Deputy Wade

under the Fourth Amendment for use of excessive force.

2. Deputy Wade must answer the Fifth Amended Complaint no later

than 21 days from the date of this Order.

DONE AND ORDERED at Tampa, Florida, on October 31, 2019.

/s/ William F. Jung

WILLIAM F. JUNG

UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO:

Counsel of Record

Plaintiff, pro se

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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