DeGraw v. Gualtieri

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

JULIE V. DEGRAW,

Plaintiff,

v. CASE NO. 8:18-cv-2116-T-02SPF

SHERIFF BOB GAULTIERI and

GREGORY GOEPFERT,

Defendants.

___________________________________/

ORDER GRANTING SUMMARY JUDGMENT

Before the Court are two motions: (1) Defendant Deputy Gregory Goepfert’s

Motion for Summary Judgment and separate Statement of Undisputed Material

Facts (Dkts. 97, 96), Plaintiff’s submissions in opposition (Dkts. 108, 109, 114,),

Deputy Goepfert’s reply (Dkt. 112); and (2) Defendant Sheriff Bob Gualtieri’s

Motion for Summary Judgment and separate Statement of Undisputed Facts (Dkts.

99, 98), Plaintiff’s submissions in opposition (Dkts. 110, 111), and Sheriff

Gualtieri’s reply. Dkt. 113. Having heard argument of both counsel at the hearing

held August 20, 2020, and after careful review of the entire file, the Court grants

summary judgment in favor of both Defendants in this excessive force case.

Introduction

Plaintiff Julie DeGraw is the widow of Mr. DeGraw. Mrs. DeGraw is a

registered nurse, and Mr. DeGraw was medically retired from service in the U.S.

Navy. He served as a combat medic for special operations with the Marines and

was deployed during the First Gulf War. Mr. DeGraw suffered from post-

traumatic stress disorder (“PTSD”), nightmares, and eventually seizures.

In the early morning of September 7, 2016, Mrs. DeGraw heard her husband

making gurgling noises and screaming from the upstairs bedroom he used when he

was feeling ill. Dkt. 96-2 (DeGraw depo.) at 21 & Exh. 27; Dkt. 108-2 (transcript

of first 911 call). Wondering if he was having a seizure, she entered the bedroom.

Dkt. Dkt. 96-2 at Exh. 27; Dkt. 108-2. Upon seeing her, he screamed at her, arose

from the bed, and began chasing her. Id. He scratched the back of her neck when

he tried to grab her. Id.

She succeeded in getting away from him and was able to call 911. She told

the dispatcher there were guns in the house. Dkt. 96-2 at 36–37 & Exh. 27; Dkt.

108-2 at 2. Deputies of the Pinellas County Sheriff’s Office (“PCSO”) and

paramedics were dispatched to the DeGraw residence and, after their arrival, Mr.

DeGraw voluntarily came downstairs for examination by the emergency medical

technicians. Dkt. 96-2 at 27–28; Dkt. 96-4 at 19–20 & Exh. 35 at 1, Exh. 36 at 3;

Dkt. 96-5 at 9. He told them he had a bad dream. He did not meet the criteria of

the Baker Act; nor did he agree to go a hospital for follow-up. Dkt. 96-2 at 28;

Dkt. 96-3 at 20, 24 & Exh. 30 at 4–6.

Later that day, Mrs. DeGraw called 911 again. Dkt. 96-2 at 39–40 & Exh.

27; Dkt. 108-2 at 5–7 (transcript of second call). This time she witnessed her

husband having a seizure while he was napping in the upstairs bedroom. Id. She

was still afraid of approaching him after the events earlier in the day. Dkt. 96-2 at

41, 43, 67 & Exh. 27; Dkt. 108-2 at 6. Different deputies came. Deputy Gregory

Goepfert and another deputy went upstairs to the bedroom where Mr. DeGraw was

making gurgling noises and yelling. Dkt. 96-2 at 15; Dkt. 96-7 (Martinez depo.) at

35–36, 115–17; Dkt. 96-8 (Goepfert depo.) at 142. The sad and unfortunate turn of

events which followed resulted in Mr. DeGraw’s death later that day. The Court

discusses them below.

Mrs. DeGraw, as personal representative, brought this action pursuant to 42

U.S.C. § 1983 alleging unreasonable and excessive force in violation of her

husband’s rights under the Fourth Amendment against Deputy Goepfert,

individually, and against Sheriff Bob Gualtieri, both in his individual and official

capacities. Dkt. 48. A state law claim for negligence in the wrongful death of Mr.

DeGraw was asserted against only Sheriff Gualtieri. Id.

Pertinent Facts at Summary Judgment

At the summary judgment stage, even in cases of excessive force, the facts

are “what a reasonable jury could find from the evidence viewed in the light most

favorable to the non-moving party.” Cantu v. City of Dothan, Ala., 2020 WL

5270645, at *2 (11th Cir. Sept. 3, 2020) (quoting Scott v. United States, 825 F.3d

1275, 1278 (11th Cir. 2016)). Where versions of what happened are somewhat

varying, disputed, or unclear, the proper standard “requires us to adopt the account

most favorable” to the non-moving party. Id. (quoting Smith v. LePage, 834 F.3d

1285, 1296 (11th Cir. 2016)). In determining the narrative, all inferences are to be

drawn and inconsistencies resolved in favor of Mrs. DeGraw as the non-moving

party.

In the first 911call, Mrs. DeGraw stated her husband “woke up screaming”

in a bedroom upstairs and when she walked in the room, she was unable to tell if

he had experienced a seizure. Dkt. 96-2 at Exh. 27; Dkt. 108-2 at 1–4. He arose

and ran, screaming, after her. She was “running away” from her husband when he

“scratched [her] in the back of [her] neck” trying to pull her out of the master

bedroom down the hall. Dkt. 108-2 at 1–2. She told the call taker he suffered

from depression and PTSD, and he kept guns in the house, including his room. Id.

at 2. She confirmed he did not have a history of verbal or physical aggression with

the exception of one episode three and a half years prior. Id. at 4. After the

officers and emergency medical technicians arrived and Mr. DeGraw was able to

walk downstairs to be checked, Mrs. DeGraw confirmed she felt safe and her

husband did not need to be taken to the hospital. Dkt. 96-2 at 22–23.

In the second 911 call about 10 hours later, Mrs. DeGraw told the dispatch

she was afraid to go upstairs because she heard him gurgling again as he had done

that morning when “he was ready to attack me.” Dkt. 96-2 at Exh. 27; Dkt. 108-2

at 6. She conveyed he had PTSD and that it was possible this could be his third

seizure of the day, if he had in fact suffered a seizure that morning. Id. She said

she would not go upstairs to check on him until help arrived. Id. Mrs. DeGraw, at

her deposition, affirmed she told the call taker she was scared but said a more

accurate reason for her not going upstairs was because she did not want her

husband to get hurt falling down the stairs as he was prone to following her. Dkt.

96-2 at 41–43.

Deputies Goepfert and Martinez were sent to the residence first because the

paramedics deemed it an unsafe situation. Until they received an all-clear, the

paramedics stayed downstairs. Mrs. DeGraw testified she told them her husband

had a seizure, was confused, and was a combat vet diagnosed with PTSD. Dkt. 96-

2 at 44. Deputy Goepfert, who was the first to climb the stairs, had reached the

mid-way landing when she told both deputies he slept with a gun under his pillow;

Deputy Goepfert then drew his taser. Dkt. 96-2 at 44–46; Dkt. 96-7 at 57–58, 91–

92, 107–08; Dkt. 96-8 at 37, 59. The deputies could hear her husband saying a

loud “ha.” Dkt. 96-2 at 45, 46, 50.

From the doorway of the upstairs bedroom, Deputy Goepfert saw Mr.

DeGraw in his undershorts, lying in bed with his head on the pillow. Dkt. 96-8 at

37–38, 41, 118. His mouth was covered with old, dry blood, and his hands were

touching the pillow. Id. at 36, 118. In the room, described as small, cluttered, and

poorly lit, were gun cases and a knife on the floor. Id. at 40–41, 82–83; Dkt. 96-10

(Street depo.) at 23–24, 29–30; 52–53; Dkt. 96-11 at Exh. 18 (photograph of

room).1

Remaining in the doorway, Deputy Goepfert identified himself, asked Mr.

DeGraw what was wrong, and told him he wanted to get him out of the room to the

be checked by paramedics. Dkt. 96-8 at 39; Dkt. 96-7 at 22, 112, 117; Dkt. 96-2 at

47, 48, 52, 68. Although Deputy Goepfert attempted to engage Mr. DeGraw in

conversation, Mr. DeGraw only screamed and yelled. Dkt. 96-7 at 117. There

appears to be some conflict about the exact noises Mr. DeGraw was making,

whether it was yelling and screaming or a loud “ha” or “yah”-like shouting, but

Mrs. DeGraw agreed it was loud. Dkt. 96-2 at 46, 50. Setting aside the lack of any

1 The photograph shows the one window in the room with the blinds open, but Sergeant Street

testified that the blinds were only partially open and the room was dimly lit on the day in

question. Dkt. 96-10 at 52–53.

precise or agreed upon description of the noise, Mr. DeGraw was not using words

to communicate.

Because several times Mr. DeGraw reached under the pillow and between

the bed and the wall, Deputy Goepfert asked him to stop and to show his hands.

Dkt. 96-8 at 40–41, 44, 53–54; Dkt. 96-7 at 117. This action prompted Deputy

Goepfert to tell Deputy Martinez, who was standing on the other side of the

doorway away from view, to “go lethal,” which meant to holster his taser and draw

his firearm. Dkt. 96-7 at 35–36, 82–83, 110–11, 114-15; 117–18, 189–90.

Deputy Goepfert tried to coax Mr. DeGraw out of bed and away from the

gun under the pillow. Dkt. 96-8 at 44, 51–54, 139. Trying to relate to and engage

Mr. DeGraw, Deputy Goepfert told him that he, too, was a vet and went to Desert

Storm. Dkt. 96-8 at 51; Dkt. 96-2 at 16, 49. Mr. DeGraw continued to scream and

sat up on the far end of the bed. Dkt. 96-8 at 41, 44, 61–63, 80, 104, 118. He then

stood, balled up his fists, and advanced toward Deputy Goepfert. Id. The deputy

told him to stop and calm down, but he continued moving toward the deputy and

the door. Dkt. 96-8 at 104; Dkt. 96-7 at 83. Mr. DeGraw did not follow the

deputy’s commands. At this point, Deputy Martinez, who was listening, holstered

his firearm, re-drew his taser, and communicated to dispatch that Mr. DeGraw was

noncompliant to verbal commands. Dkt. 96-7 at 35–36, 113–15, 118–20, 134-37

& Exh. 23.

As Deputy Goepfert was backing up toward the staircase as Mr. DeGraw

came forward, he deployed his taser, which hit Mr. DeGraw in the chest instead of

his torso or leg. Dkt. 96-8 at 63, 81–82, 122–23, 147–48. The two men were only

three-and-a-half feet apart when the trigger was pulled. Dkt. 96-8 at 63,122–23.

Mr. DeGraw fell against the wall. Deputy Goepfert short-cycled the taser at two

seconds, as opposed to letting it run the full five seconds. Dkt. 96-8 at 104–05;

Dkt. 96-7 at 144. Both deputies tried to calm Mr. DeGraw down and told him to

stay on the floor, but Mr. DeGraw did not comply and continued to scream and yell

and started to stand up. Dkt. 96-8 at 124.

The cycle of activating the taser, cutting it short, attempting to calm him,

instructing him to stay on the floor followed by Mr. DeGraw yelling, clenching his

fists, and trying to get up, continued four more times. Dkt. 96-7 at 144–45; Dkt.

96-8 at 65, 95–96, 104–05, 123–28. The second activation lasted three seconds,

the third for one second, the fourth for the full five seconds, and the fifth for one

second. In all, the activations lasted 12 seconds over a 94-second span. Dkt. 96 ¶

66; Dkt. 96-9 at Exh. 14 (taser download). After each of the five separate

activations, Mr. DeGraw continued to yell loudly, once using the expletive

“mother-f****r,” and to groan, and he “seemed very angry and very intense.” Dkt.

96-2 at 51; Dkt. 96-8 at 126.

When Sergeant Street arrived, he started up the stairs. While at the bottom

of the staircase, he heard Deputy Goepfert announce “taser” and the sound of

activation. Dkt. 96-10 at 10, 12. At the top of the stairs, he found both deputies

waiting outside the bedroom. Sgt. Street was informed of the weapons in the

room, including the gun under the pillow, and the ineffectiveness of the tasering.

Id. at 25. Sgt. Street heard Mr. DeGraw “grunting . . . like a guttural type of sound

very loudly.” Id. at 24, 29–30, 56, 59; Dkt. 96–7 at 153–54. He concluded that the

taser was not fully effective. Dkt. 96-10 at 25, 57. He observed two rifle cases and

a knife on the nightstand. Id. at 24.

All three officers began to remove some of the clutter in the room so they

could enter to handcuff Mr. DeGraw. Id. at 25–29, 55. Sgt. Street took hold of

Mr. DeGraw and he tensed. Id. at 60–61. Both Sgt. Street and Deputy Martinez

worked to gain control over one wrist for handcuffing. Dkt. 96-7 at 128–29.

Deputy Goepfert tried to control Mr. DeGraw’s feet because he was thrashing and

kicking. Dkt. 96-10 at 38–39, 60; Dkt. 96-8 at 69, 129–30; Dkt. 96-7 at 48, 133–

34. Mr. DeGraw, even after one wrist was handcuffed, resisted them by holding

his right arm tightly underneath him. Dkt. 96-10 at 36, 63–65; Dkt. 96-7 at 46–47,

49, 128–29, 131; Dkt. 96-8 at 72. When both handcuffs were finally secure, Mr.

DeGraw’s lips were moving and his breathing was steady and regular. Dkt. 96-7 at

158–61, 186; Dkt. 96-8 at 130, 138–39: Dkt. 96-10 at 39–40, 65–66, 80–83; Dkt.

96-11 (Baldwin depo.) at 27, 37. He continued to groan and grunt. Id.

The three officers rolled him on his side. At this point they noticed his

breathing had changed. Dkt. 96-10 at 39–41, 78, 83; Dkt. 96–7 at 50–52, 157–59,

161–64; Dkt. 96-8 at 139. They felt a pulse. Dkt. 96-7 at 50–51; Dkt. 96-8 at 71;

Dkt. 96-10 at 41. Mrs. DeGraw noticed the noise had stopped and she called up

from downstairs and asked if her husband was still breathing. Dkt. 96-2 at 53.

They confirmed he was still breathing. Id. They tried to revive him, but Mr.

DeGraw did not respond. Dkt. 96-8 at 72.

Meanwhile a fourth officer, Deputy Baldwin, arrived, having heard the

“yelling or screaming” on the cleared emergency radio channel. Dkt. 96-11 at 19.

He was in the hallway upstairs by the time Mr. DeGraw was unresponsive, and he

summoned the paramedics who were waiting downstairs until it was safe enough

for them to enter. Dkt. 96-10 at 41; Dkt. 96-11 at 29. As the paramedics came

upstairs to the room, Sgt. Street removed the handcuffs. Dkt. 96-10 at 42. Mr.

DeGraw was transported to the hospital where he died later that day. Dkt. 96-2 at

55–56; Dkt. 96-3 at Exh. 30; Dkt. 96-7 at 165–66. The cause of death was excited

delirium syndrome with contributing causes of hypertensive heart disease,

supratherapeutic venlafaxine level, and electro-muscular disruption device (the

taser). Dkt. 96-12 at 11. For purposes of this summary judgment, the Court will

presume his death was caused by the tasering.2

There is no evidence any of the law enforcement officers ever sat on Mr.

DeGraw, straddled him, or put body weight on him. Dkt. 96-7 at 47, 49, 160–61;

Dkt. 96-10 at 36–37, 61–62, 66. Sgt. Street found under the pillow a semi-

automatic pistol, loaded with six rounds in the magazine and pointed at the door.

Dkt. 96-10 at 45. Also found in the room were rifles in the rifle cases, two

handguns in cases toward the foot of the bed, shotguns, pistol magazines, and

ammunition on the floor. Dkt. 96-10 at 45, 50–51; Dkt. 96-8 at 145; Dkt. 96-12 at

5, 8–9.

Liability of the Sheriff

Sheriff Gualtieri was not at the DeGraw residence on September 7, nor did

he take or attend any investigative interviews. Because he did not personally

participate in the alleged constitutional violation and there was no causal

connection between his actions and the alleged constitutional violation, individual

liability does not attach to Sheriff Gualtieri. See Keating v. City of Miami, 598

F.3d 753, 762 (11th Cir.) (citing Gonzalez v. Reno, 325 F.3d 1228, 1234 (11th Cir.

2003)), cert. dismissed, Timoney v. Keating, 562 U.S. 978 (2010). Not only was he

2 The facts accepted at summary judgment may not be the actual facts of the case. McCullough

v. Antolini, 559 F.3d 1201, 1202 (11th Cir. 2009).

not present, but Sheriff Gualtieri did not 1) direct his subordinates to act

unlawfully or 2) know his subordinates would act unlawfully and fail to stop them.

Id.

To establish official capacity liability of the sheriff in a § 1983 action, a

policy, custom, or practice must have caused the deprivation of civil rights.

Monell v. Dep’t of Social Servs., 436 U.S. 658, 693–94 (1978). Liability under

Monell arises in three situations: (1) a formally adopted policy statement or

ordinance, or a governmental custom that has not been formally approved, see id.

at 690–91; (2) a failure to train amounting to deliberate indifference to the rights of

persons with whom untrained employees come into contact, City of Canton v.

Harris, 489 U.S. 378, 388 (1989); or (3) a ratification based on a single incident

after policymakers had an opportunity to review the subordinate’s decision and

agreed with both the decision and its basis. See Thomas ex rel. v. Roberts, 261

F.3d 1160, 1174 n.12 (11th Cir. 2001), cert. granted, judgment vacated sub nom.

Thomas v. Roberts, 536 U.S. 953 (2002), opinion reinstated, 323 F.3d 950 (2003)).

The policies at issue are PCSO’s use of force policy, General Order 13-3, and its

mental illness policy, General Order 13-10. Dkt. 114-1 (Gen. Ord. 13-10); Dkt.

114-2 (Gen. Ord. 13-3).

Neither Plaintiff nor her experts claim either policy is unconstitutional.3 She

relies on the failure to train and the PCSO’s ratification of Deputy Goepfert’s

“entire tasering episode.” Dkt. 111 at 4 n.1. As to failure to train, Plaintiff cannot

attribute Monell liability on inadequacies in, or the lack of, training because not

one instance of a PCSO deputy’s use of a taser has been found to be

unconstitutional, let alone in circumstances similar to this case. In the four years

preceding the events of September 2016, there were no substantiated complaints

involving allegations of deputies tasering someone. Dkt. 98-7 ¶ 18. In use of force

cases, PCSO collects, maintains, and reviews data (Dkt. 98-8 at 44; Dkt. 98 ¶¶ 33–

47), which shows PCSO deputies used tasers less than half as often as other

agencies and there were no taser-involved deaths in the four years prior to Deputy

Goepfert’s use of a taser on Mr. DeGraw. Dkt. 98 ¶¶ 46, 47. This is not a case of

complete lack of training, which would evidence a “deliberate indifference,” and

no prior incidents involving similar facts occurred to place PCSO on notice of any

constitutional shortcomings. City of Canton, 489 U.S. at 390 n.10.

3 “PCSO has appropriate mental illness policies on paper[.]” Dkt. 111 at 13. Her experts did not

find any of PCSO’s policies, including use of force, unconstitutional. Dkt. 98-9 (Van Blaricom

depo.) at 37; Dkt. 98-10 (Drago depo.) at 8–9, 17. Although expert Van Blaricom initially

criticized the use of force policy concerning electronic control weapons because it stated “avoid

using the chest area” as opposed to “prohibit using the chest area,” he admitted prohibiting was

his preference and a “best practice.” Dkt. 98-9 at 25, 37. He later said he was not critical of the

use of force policy with respect to the circumstances in which a taser could be used. Dkt. 98-9 at

41.

Plaintiff’s theory that Deputy Goepfert’s conduct was ratified is based on

alleged shortcomings in the investigation and the failure to discipline him for his

acts. Dkt. 111 at 15–17. A sheriff, however, cannot be held liable under § 1983

for a single failure to investigate a constitutional violation. Salvato v. Miley, 790

F.3d 1286, 1296–98 (11th Cir. 2015) (reversing denial of summary judgment on

excessive force where plaintiff argued sheriff ratified unconstitutional conduct by

inadequately performing internal investigation after a single incident of shooting).

The approval of the subordinate’s decision must occur before the subordinate acts.

Here, as in Salvato and Thomas, the sheriff did not review, much less ratify, any

part of Deputy Goepfert’s actions before he used his taser.

The PCSO policies on use of force and mental illness are not

unconstitutional under Monell or under any alternate theory espoused by Plaintiff.4

Summary judgment is granted in favor of the sheriff on Count II of the Second

Amended Complaint.

Liability of Deputy Goepfert

The defense of qualified immunity is available to a law enforcement officer

if acting within his or her discretionary authority unless the acts violate “clearly

4 Plaintiff refers to a “trickle down” theory based on alleged statements concerning tasers made

by Sheriff Gualtieri to the press and in depositions of other cases. Dkt. 111 at 6–12. She

contends his philosophy that tasers cannot cause death constituted a form of training and also

permeated the investigation. This argument has no basis in law or fact.

established [federal] statutory or constitutional rights of which a reasonable person

would have known.” Keating, 598 F.3d at 762 (quotations omitted). To defeat

qualified immunity, Plaintiff must show both 1) a constitutional violation occurred,

and 2) at the time of the challenged acts, the law clearly established the

unconstitutionality of the conduct. Hope v. Pelzer, 536 U.S. 730, 736 (2002)

(establishing constitutional violation is necessary); Saucier v. Katz, 533 U.S. 194,

201 (2001) (demonstrating clearly established law is necessary), receded from,

Pearson v. Callahan, 555 U.S. 223, 236 (2009); Singletary v. Vargas, 804 F.3d

1174, 1180–81 (11th Cir. 2015) (reversing denial of qualified immunity for failure

to meet both requirements).

It is uncontested that Deputy Goepfert was acting within his discretionary

authority. This is not a false arrest case, as Plaintiff conceded at the hearing. Only

the use of unreasonable and excessive force violative of the Fourth Amendment is

claimed. In deciding whether an officer has used excessive force, the Court must

“slosh . . . through the fact[ual] morass of ‘reasonableness’ because, in the end, all

that matters is whether [the officer’s] actions were reasonable.” Vargas, 804 F.3d

at 1180 (quoting Scott v. Harris, 550 U.S. 372, 383 (2007)). Even if the officer’s

acts are unconstitutional, the officer is liable only if clearly established law would

have placed a reasonable officer under the same circumstances on notice that the

objectionable conduct violated the plaintiff’s constitutional rights. Id. at 1180–81.

The facts will be taken in the light most favorable to Mrs. DeGraw, who has

endured unexpected, tragic loss resulting from a simple call for help after her

husband had a seizure. The circumstances and facts of the scene on September 7,

2016 will be viewed from the perspective of a reasonable officer, recognizing that

“split-second judgments” about the amount of force necessary are often made in

“tense, uncertain, and rapidly evolving” situations.5

Plaintiff argues that none of the five tasering applications were justified

because it is objectively unreasonable and inappropriate to use a taser in a medical

distress case like this one. Plaintiff readily admits, however, the absence of case

law addressing the constitutional standard for an officer’s actions when involved in

a purely medical assistance call with no attendant arrest or planned Baker Act

arrest. Dkt. 109 at 3. Although Plaintiff raises the issue of whether Deputy

Goepfert was deliberately indifferent to Mr. DeGraw’s serious medical need, this

case neither alleges nor supports such a claim, particularly where the paramedics

were already waiting at the DeGraw residence for the situation to be made safe,

and were summoned quickly by the officers after Mr. DeGraw was handcuffed.

5 The analysis must allow for “the fact that police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount

of forced that is necessary in a particular situation.” Plumhoff v. Rickard, 572 U.S. 765, 775

(2014) (quoting Graham v. Connor, 490 U.S. 386, 396–97 (1989)); Vargas, 804 F.3d at 1181.

It is not inherently unlawful to detain someone experiencing a medical

emergency. City & Cnty. of San Francisco, Cal. v. Sheehan, 135 S. Ct. 1765

(2015) (concluding Fourth Amendment does not prohibit officers from detaining

someone experiencing medical emergency). Even if a deputy acts contrary to his

training including general orders of policy promulgated by the agency, qualified

immunity is not denied if “a reasonable officer could have believed his conduct

was justified.” Sheehan, 135 S. Ct. at 1777 (citations omitted).6 Although Plaintiff

urges that Deputy Goepfert should have handled the situation differently, her

experts’ opinions and arguments do not alter, in hindsight, the gravity of the

situation firsthand. Sheehan, 135 S. Ct. at 1777–78 (noting expert’s report of

inappropriate handling would not negate qualified immunity).

To accept Plaintiff’s preferred version of the facts would require

disregarding the circumstances as perceived by a reasonable officer in the same

situation encountered by Deputy Goepfert, a feat this Court must not attempt.

Plaintiff adamantly asserts as fact that “from the victim’s perspective,” no

reasonable officer could have found Mr. DeGraw should have been tasered. Dkt.

109 at 20. In Plaintiff’s words, Mr. DeGraw was just a man “lying calmly in his

bed, a man not guilty of any crime, clad in just his underwear, suffering from

effects of a seizure in a postictal state which the officer knew would make him

6 In any event, Plaintiff has not shown any officers failed to act in conformity with their training.

confused, a man struggling to understand what was going on and trying to comply

with the conflicting, rapid succession, and often confusing commands, a man not

attempting to reach for use for any weapon.” Id.

Three of these “facts” must be questioned because they do not conform to

any conceivable narrative based on the evidence in the record. First, the modifier

“calmly” used to describe Mr. DeGraw’s behavior is unsupported by the record.

The deputies witnessed Mr. DeGraw on the bed and heard him yelling, screaming,

or, at the very least, making loud grunting or guttural noises. Even Mrs. DeGraw

concedes he was making noises loud enough for her to hear from downstairs. That

she may disagree as to the deputy’s description of the noise does not alter the fact

he was making unintelligible sounds and was never silent until after he was

handcuffed.

Next, the terms “conflicting” and “often confusing” used to describe the

commands given by Deputy Goepfert represent Plaintiff’s argument concerning the

verbal and non-verbal exchange, such that it was, between her husband and the

deputy. There is no evidence other than the recounting of the events at the scene

by the deputies who were upstairs; again, Mrs. DeGraw was downstairs and could

not see her husband’s actions in response to any one particular command.

According to Deputy Goepfert, he did begin telling Mr. DeGraw to stop until he

was advancing toward the deputy with raised fists.

Finally, the reference to Mr. DeGraw’s reaching for a weapon is undisputed.

It occurred before Mr. DeGraw moved to the foot of the bed and thereafter arose to

move toward Deputy Goepfert with raised fists. The uncontradicted evidence

shows Deputy Goepfert had been told by Mrs. DeGraw a gun was kept under the

pillow, and he saw various gun cases in the small, cluttered, dimly lit room as well

as a knife in plain view on the floor or on the nightstand.

Deputy Goepfert did not associate Mr. DeGraw’s non-verbal sounds with a

state of calmness, especially when coupled with a room full of guns and a knife.

Plaintiff suggests her husband remained calm until he was tasered, despite his

intermittent reaching under the pillow where he kept the gun and his continuous

shouting, yelling, or groaning. Fearing for the physical safety of both of Mr.

DeGraw and himself, Deputy Goepfert conveyed to Deputy Martinez to draw his

firearm and directed Mr. DeGraw to get up out of the bed to move out of the room.

A reasonable officer would have asked a person with easy and ready access to a

firearm to move away from the gun and to step out of a room full of weapons.

After Mr. DeGraw moved to the foot of the bed, he suddenly arose, clenched

his fists, and started moving toward the door and Deputy Goepfert, all the while

making loud, incoherent sounds. It was at this point that Deputy Goepfert told him

to stop. Mr. DeGraw did not obey the command. Deputy Goepfert backed up and

continued to order him to stop, but he did not comply. At this point, the deputy

deployed his taser, even though he was unable to maintain the recommended six-

foot distance. He aimed for the torso and limbs, but the prongs connected to the

chest because he was turning to move farther away from Mr. DeGraw.

Once Mr. DeGraw was on the floor of the bedroom, Deputy Goepfert

instructed him to remain there. Mr. DeGraw did not follow the repeated directives

to stay on the floor and calm down but instead kept trying to get up from the floor.

The taser was activated briefly each time he tried to get up. Even after the

activations, it took three officers to handcuff him. At no time did any of them put

weight on him. Mr. DeGraw never stopped giving resistance. A reasonable officer

would have used nonlethal force to gain compliance of a delirious man advancing

toward him with raised clenched fists making loud noises in a room with guns and

a knife.7

Finally, Plaintiff contends that as of September 2016 the law clearly

established Deputy Goepfert used unconstitutional excessive force by activating

his taser multiples times. See Patel v. City of Madison, Ala., 959 F.3d 1330, 1343

(11th Cir. 2020) (listing three methods to show a particular amount of force is

clearly established as excessive). Under Plaintiff’s version of the facts, however,

Mr. DeGraw was under control and complying with the officers’ commands given

7 A taser generally is not considered a deadly weapon. Fils v. City of Aventura, 647 F.3d 1272,

1276 n.2 (11th Cir. 2011); see also cases cited by Defendants at docket 97, pages 8 through 10.

his confused state. Mrs. DeGraw does not dispute that Deputy Goepfert backed up

in retreat before deploying his taser or that her husband continued to yell and

scream and disobey commands to stay on the ground. Plaintiff may not divine a

set of facts unsupported by the record. This is not a case of a compliant,

unresisting person or one where the initial combative conduct ceases and the use of

force continues. See, e.g., Sebastian v. Ortiz, 918 F.3d 1301, 1308 (11th Cir. 2019)

(noting qualified immunity denied in gratuitous force cases involving suspects who

were “under control, not resisting, and obeying commands”); Wate v. Kubler, 839

F.3d 1012, 1021 (11th Cir. 2016) (holding use of force grossly disproportionate

where suspect was shocked five times after being handcuffed); Oliver v. Fiorino,

586 F.3d 898, 906 (11th Cir. 2009) (holding use of force grossly disproportionate

to threat posed initially where individual was repeatedly tasered after compliance).

It is undisputed there is no case law on point that renders the challenged

conduct unreasonable and excessive force. Plaintiff has failed to demonstrate that

a broader, clearly established principle should control the novel facts of this case or

that this case is an exception to the requirement of prior case law because it so

“obviously violates” the constitution. Even if there were a constitutional violation

taking the facts in the light most favorable to Plaintiff, it was not clearly

established. Deputy Goepfert is entitled to qualified immunity; summary judgment

is granted as to Count I of the Second Amended Complaint.

Accordingly, the motions for summary judgment (Dkts. 97, 99) are granted.

All federal claims (Counts I and II of the Second Amended Complaint) have been

resolved in favor of Defendants. In the interest of judicial economy, convenience,

and comity, the Court declines to exercise supplemental jurisdiction over the

remaining state law claim for wrongful death (Count III). Count III of the Second

Amended Complaint is dismissed without prejudice to refiling in state court, and

the statute of limitations on the state law claim is tolled for thirty (30) days.’ The

Clerk is directed to enter judgment in favor of Defendants on Counts I and II of the

Second Amended Complaint, to terminate any pending motions and deadlines, and

to close the case.

DONE AND ORDERED at Tampa, Florida, on September 21, 2020.

WILLIAM F. ar

UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO:

Counsel of Record

8 Dismissal of supplemental state law claims is strongly encouraged where the federal claims are

dismissed prior to trial. Farquharson y. Citibank, N.A., 664 F. App’x 793, 798 (11th Cir. 2016)

(citing Baggett v. First Nat’l Bank of Gainesville, 117 F.3d 1342, 1353 (11th Cir. 1997)).

? See Artis v. Dist. of Columbia, 138 S. Ct. 594 (2018) (construing 28 U.S.C. § 1367(d)).

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