Tews v. Terrell

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

CAROLYN LUKE TEWS,

Plaintiff,

v. Case No. 3:20-cv-810-MMH-JBT

OFFICER T.L. TERRELL,

Defendant.

ORDER

THIS CAUSE is before the Court on Defendant’s Motion to Dismiss

Plaintiff’s Complaint (Doc. 3; Motion), filed July 22, 2020, and Defendant’s

Memorandum of Law in Support of his Motion to Dismiss Plaintiff’s Complaint

With Prejudice (Doc. 6; Memo of Law), filed August 06, 2020 (collectively

“Motion to Dismiss”). In the Motion to Dismiss, Defendant Officer T.L. Terrell,

seeks dismissal of the claims in Plaintiff Carolyn Luke Tews’ Complaint (Doc.

2; Complaint). Tews filed her Response to Motion to Dismiss on September 10,

2020 (Doc. 11; Response). Accordingly, this matter is ripe for the Court’s

consideration.

I. Motion to Dismiss Standard

In ruling on a motion to dismiss, the Court must accept the factual

allegations set forth in the complaint as true. See Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508, n.1 (2002);

see also Lotierzo v. Woman's World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th

Cir. 2002). In addition, all reasonable inferences should be drawn in favor of

the plaintiff. See Omar ex rel. Cannon v. Lindsey, 334 F.3d 1246, 1247 (11th

Cir. 2003) (per curiam). Nonetheless, the plaintiff must still meet some

minimal pleading requirements. Jackson v. BellSouth Telecomm., 372 F.3d

1250, 1262–63 (11th Cir. 2004) (citations omitted). Indeed, while “[s]pecific

facts are not necessary,” the complaint should “‘give the defendant fair notice

of what the . . . claim is and the grounds upon which it rests.’” Erickson v.

Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007)). Further, the plaintiff must allege “enough

facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S.

at 570. “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing

Twombly, 550 U.S. at 556). The “plaintiff's obligation to provide the grounds

of his entitlement to relief requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not do.” Twombly,

550 U.S. at 555 (citations omitted); see also BellSouth Telecomm., 372 F.3d at

1262 (explaining that “conclusory allegations, unwarranted deductions of facts

or legal conclusions masquerading as facts will not prevent dismissal”)

(citations and quotations omitted). Indeed, “the tenet that a court must accept

as true all of the allegations contained in a complaint is inapplicable to legal

conclusions,” which simply “are not entitled to [an] assumption of truth.” See

Iqbal, 556 U.S. at 679. Thus, in ruling on a motion to dismiss, the Court must

determine whether the complaint contains “sufficient factual matter, accepted

as true, to ‘state a claim to relief that is plausible on its face.’” Id. at 678

(quoting Twombly, 550 U.S. at 570).

II. Background

In her Complaint, Tews alleges that Officer Terrell violated her

constitutional right to be free from unreasonable seizure under the Fourth and

Fourteenth Amendment when he executed his arrest with excessive force.

Complaint at 4. Additionally, she alleges that Officer Terrell is liable under

Florida state law for the tort of battery. Id. at 5. As the underlying facts of

her claims, Tews asserts that Officer Terrell pulled her over while she was

driving her car on February 9, 2016, because he suspected her of driving while

intoxicated. Id. at 2, ¶ 6. Officer Terrell drove Tews a mile from where he

pulled her over to conduct a field sobriety test. Id. at 2, ¶ 8. After conducting

the test, Officer Terrell arrested Tews for driving under the influence. See id.

at 2, ¶ 9. In doing so, Officer Terrell handcuffed Tews and placed her in the

back of the patrol car. However, Tews, who at 60 years of age was five feet one

inch tall, and weighed 100 pounds, was able to slip the handcuffs off her wrist.

Id. at 2, ¶ 10, 12. According to Tews, Officer Terrell was approximately a foot

taller than she and double her weight. Id. at 3, ¶ 12-13.

Tews asserts that upon realizing that Tews had freed her hands from the

handcuffs in the back of the car

Officer Terrell became enraged . . . and he pulled her out of his car

and slammed her to the ground causing Ms. Tews serious physical

injuries including but not limited to a concussion and damage to her

jaw and teeth including a tooth having been dislodged and

aggravation of a prior shoulder injury.

Id. at 3, ¶ 14. Tews also lost consciousness, suffered ongoing mental

disorientation, and continues to suffer from nerve damage and numbness in

her face and lips. Id. at 3, ¶ 17-18. Tews maintains that immediately leading

up to the incident she was in “obvious mental distress” and “. . . expressed

suicidal thoughts even imploring Officer Terrell to kill her.” Id. at 3, ¶ 15-16.

Tews alleges that in using his full strength to slam Tews to the ground, Officer

Terrell used excessive and unnecessary force and “. . . knowingly and

intentionally or wantonly [struck] her head upon the paved surface.” Id. at 3,

¶ 16.

III. Summary of the Arguments

In Count I, Tews asserts a federal excessive force claim based on the force

Officer Terrell used to effectuate her arrest. Officer Terrell seeks to dismiss

this claim, asserting that he is entitled to qualified immunity. Motion at 1;

Memo of Law at 7-11. In Count II, Tews brings a state law tort claim for

battery against Officer Terrell. Complaint at 5. In his Motion to Dismiss,

Officer Terrell asserts that Tews has failed to assert sufficient facts to establish

that Officer Terrell is not entitled to sovereign immunity under Florida

Statutes section 768.28(9)(a). Memo of Law at 1-2. In response to the Motion

to Dismiss, Tews maintains that she has sufficiently pleaded facts to show that

Officer Terrell is not entitled to qualified immunity or sovereign immunity in

regard to either claim. See generally Response. The Court will first address

the excessive force claim and then turn to the state law tort claim for battery.

IV. Discussion

a. Count I: Excessive Force Claim

The doctrine of “[q]ualified immunity protects from civil liability

government officials who perform discretionary functions if the conduct of the

officials does not violate ‘clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Nolin v. Isbell, 207 F.3d 1253,

1255 (11th Cir. 2000) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

As a result, this defense protects from suit “‘all but the plainly incompetent or

those who knowingly violate the law.’” Carr v. Tatangelo, 338 F.3d 1259, 1266

(11th Cir. 2003) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Indeed,

as “‘government officials are not required to err on the side of caution,’ qualified

immunity is appropriate in close cases where a reasonable officer could have

believed that his actions were lawful.” Lee v. Ferraro, 284 F.3d 1188, 1200 (11th

Cir. 2002) (quoting Marsh v. Butler Cnty., 268 F.3d 1014, 1031 n.8 (11th Cir.

2001)).

In order to be entitled to qualified immunity, the defendant must first

establish that his conduct was within the scope of his discretionary authority.

See Webster v. Beary, 228 F. App’x 844, 848 (11th Cir. 2007) (per curiam); Lee,

284 F.3d at 1194. Here, neither party contends that Officer Terrell was acting

outside the scope of his discretionary authority when he arrested Tews.1 Lee,

284 F.3d at 1194 (finding that “there can be no doubt that the [officer] was acting

in his discretionary capacity when he arrested [the plaintiff]” even though the

plaintiff asserted that the officer used excessive force in effectuating the arrest).

Therefore, the burden shifts to Tews “to show that qualified immunity is not

appropriate.” Lee, 284 F.3d at 1194. To do so, Tews must establish two

elements: (a) that the defendant violated a constitutional right, and (b) the right

violated was clearly established. Kingsland v. City of Miami, 382 F.3d 1220,

1232 (11th Cir. 2004) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). In his

Motion to Dismiss, Officer Terrell argues that Tews has failed to sufficiently

1 “‘A government official acts within [her] discretionary authority if the actions were (1)

undertaken pursuant to the performance of [her] duties and (2) within the scope of [her]

authority.’” Jones v. City of Atlanta, 192 F. App’x. 894, 897 (11th Cir. 2006) (per curiam)

(quoting Lenz v. Winburn, 51 F.3d 1540, 1545 (11th Cir. 1995)).

state a claim that Officer Terrell violated Tews’ constitutional rights. See Memo

of Law at 9. Tews asserts that Officer Terrell violated her Fourth and

Fourteenth Amendment right to be free from unreasonable search and seizure

when he employed excessive force to effectuate her arrest. See Complaint at 4.

As a preliminary matter, the Court finds that Tews’ claim must be

analyzed under the Fourth Amendment rather than the Fourteenth

Amendment. According to the Supreme Court:

all claims that law enforcement officers have used excessive force –

deadly or not – in the course of arrest, investigatory stop, or other

“seizure” of a free citizen should be analyzed under the Fourth

Amendment and its “reasonableness” standard, rather than under

a “substantive due process” approach. Because the Fourth

Amendment provides an explicit textual source of constitutional

protection against this sort of physically intrusive governmental

conduct, that Amendment, not the more generalized notion of

“substantive due process,” must be the guide for analyzing these

claims.

Graham v. Connor, 490 U.S. 386, 395 109 S. Ct. 1865, 1871, 104 L. Ed.2d 443

(1989).

“The Fourth Amendment’s freedom from unreasonable searches and

seizures encompasses the plain right to be free from the use of excessive force

during the course of a criminal apprehension.” Oliver v. Fiorino, 586 F.3d 898,

905 (11th Cir. 2009). However, “‘Fourth Amendment jurisprudence 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.’” Vinyard v. Wilson, 311 F.3d 1340, 1347 (11th Cir. 2002) (citation

omitted). Indeed, the Eleventh Circuit recognizes that “the typical arrest

involves some force and injury.” See Rodriguez v. Farrell, 280 F.3d 1341, 1350

(11th Cir. 2002). “A constitutional violation only occurs when the officer’s use

of force is ‘objectively unreasonable’ in light of the totality of the circumstances

at the time the force is used.” Glover v. Eighth Unknown D.E.A. Agents/Drug

Task Force Agents from Birmingham, Ala. Task Force, 225 F. App’x 781, 785-

86 (11th Cir. 2007) (citation omitted).

In evaluating a claim of excessive force, courts must use a “standard of

reasonableness at the moment.” Graham, 490 U.S. at 396, 109 S. Ct. at 1872.

We do not sit in judgment to determine whether an officer made the

best or a good or even a bad decision in the manner of carrying out

an arrest. The Court’s task is only to determine whether an officer’s

conduct falls within the outside borders of what is reasonable in the

constitutional sense.

Buckley v. Haddock, 292 F. App’x 791, 794 (11th Cir. 2008). “The calculus of

reasonableness must embody allowance 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 force that is necessary in

a particular situation.” Graham, 490 U.S. at 396-97, 109 S. Ct. at 1872. “The

‘reasonableness’ of a particular use of force must be judged from the perspective

of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight.” Id. at 396, 109 S. Ct. at 1872. Because “reasonableness” cannot be

defined precisely or applied mechanically, the Supreme Court has instructed

that:

its proper application requires careful attention to the facts and

circumstances of each particular case, including the severity of the

crime at issue, whether the suspect poses an immediate threat to

the safety of the officers or others, and whether [the suspect] is

actively resisting arrest or attempting to evade arrest by flight.

Id.; see also Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993),

modified, 14 F.3d 583 (11th Cir. 1994). A court uses these factors, referred to as

the Graham factors, to analyze the reasonableness of an officer’s use of force.

See Lee, 284 F.3d at 1198. In this regard the Eleventh Circuit instructs that

“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.” Id. In addition to the Graham factors, the Eleventh

Circuit has also set forth the following considerations for determining if force

was reasonable: “(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.” Vinyard, 311 F.3d at 1347 (citing Lee, 284 F.3d at 1197-98).

Significantly, "an officer will be entitled to qualified immunity . . . if an

objectively reasonable officer in the same situation could have believed that the

force used was not excessive.” Vinyard, 311 F.3d at 1346.

Particularly important to the determination of whether any force used by

an officer was excessive, and relevant here, is the question of whether the

arrestee complied with the officer’s commands, or whether the arrestee resisted

the officer’s attempts to effectuate the arrest. See Draper v. Reynolds, 369 F.3d

1270, 1278 (11th Cir. 2004) (officer’s use of taser against plaintiff reasonable

where plaintiff was “hostile, belligerent, and uncooperative” with officer in the

course of the arrest); Hines v. Jefferson, 338 F. Supp. 3d 1288, 1302 (N.D. Ga.

2018), aff'd, 795 F. App'x 707 (11th Cir. 2019) (officer’s use of chokehold was

reasonable where plaintiff admitted to resisting and struggling against officer);

Crutcher v. Athens Police Dep’t, NO. CV-10-S-1176-NE, 2014 WL 5521944, at

*6 (N.D. Ala. Oct. 31, 2014) (officer’s use of chokehold that resulted in plaintiff

losing consciousness not unreasonable where plaintiff actively resisted arrest).

Notably, the Eleventh Circuit has held that “gratuitous use of force when a

criminal suspect is not resisting arrest constitutes excessive force.” Saunders v.

Duke, 766 F.3d 1262, 1267 (11th Cir. 2014) (citations and internal quotations

omitted). Indeed, in Saunders, the Eleventh Circuit concluded that the district

court erred in dismissing a plaintiff’s Fourth Amendment excessive force claim

on qualified immunity grounds, stating

[t]hough he was not resisting or posing a threat to anyone, one of

the agents allegedly “slammed” his head into the pavement with

“extreme force.” If these allegations are true, and we must assume

that they are at this stage of the case, that force was unnecessary,

disproportionate, and constitutionally excessive.

Id. at 1268 (citations omitted). Even if the complaint suggested that plaintiff

did disobey an order by lifting his head off the ground, the Eleventh Circuit

found that “minor transgression” did not necessarily mean the force used was

reasonable or that the officer was entitled to qualified immunity. Id. at 1269

(citations omitted).

In arguing that he is entitled to qualified immunity, Officer Terrell relies

on a video recording from the backseat camera in his police cruiser.2 Memo of

Law at 5. Specifically, Officer Terrell argues that the only constitutional

violation alleged in the Complaint is that he used excessive force to take Tews

to the ground. Id. at 11. Officer Terrell maintains that the video shows “[Tews’]

active resistance and continued lack of cooperation” which led to the take-down.

See id. at 10-11. He asserts that the force he used was “lawfully necessary to

overcome [Tews’] resistance” and thus Tews has failed to sufficiently state a

claim for a constitutional violation under the Fourth Amendment. See id.

2 When ruling on a Motion to Dismiss, the Court generally only considers the Complaint and

the documents attached thereto. Fin. Sec. Assur., Inc. v. Stephens, Inc., 500 F.3d 1276, 1284

(11th Cir. 2007) (citation omitted). However, an exception exists where “a plaintiff refers to a

document in its complaint, the document is central to its claim, its contents are not in dispute,

and the defendant attaches the document to its motion to dismiss.” Id. (citation omitted).

Here, Tews refers to the video at issue in her Complaint. Complaint at 3-4, ¶ 20. The video is

central to Tews’ claim because it is a recording of the entirety of the events surrounding both

of her causes of action. Additionally, despite making the conclusory assertion that the video

is “not germane to matters at issue at this stage,” Tews’ Response discusses the contents of the

video at length. Response at 9-11. Neither party disputes the contents of the video and Officer

Terrell has attached it to his Motion to Dismiss. See Defendant’s Notice of Filing Exhibit in

Support of his Motion to Dismiss (Doc. 7). Therefore, the Court properly considers the video

in ruling on the Motion to Dismiss.

A review of the video footage does little to resolve the issue of whether

Tews was resisting at the time of the take-down. This is so because Officer

Terrell’s body blocks the camera’s view during the critical time preceding the

take-down, there is little to no lighting, and the quality of the footage is poor.

As a result, it is impossible for the Court to observe the events immediately

leading up to the take-down or the take-down itself. In the moments before

Officer Terrell’s take-down of Tews, he can be heard repeatedly telling Tews to

“stop resisting.” In response, Tews repeatedly says “I’m not resisting.” Because

the video does not conclusively show whether or not Tews was actually resisting

at the time of the take-down Officer Terrell’s reliance on it is unavailing. While

the video does not appear to support the assertion that Officer Terrell became

enraged, it does not foreclose Tews’ claim that the force he used in taking her to

the ground was unnecessary and constitutionally excessive. Accepting the

factual allegations set forth in the complaint as true, see Ashcroft, 556 U.S. at

678, and drawing all reasonable inferences in favor of Tews, see Omar ex rel.

Cannon, 334 F.3d at 1247, where Tews version of the need for force is not

contradicted by the video recording, Officer Terrell’s Motion to Dismiss is due to

be denied.

b. Count II: State Law Battery Tort Claim

Tews also asserts a claim against Officer Terrell for battery under state

law. Complaint at 5. Officer Terrell seeks dismissal of this claim on the grounds

of immunity under Florida Statutes section 768.28(9)(a). Memo of Law at 12-

13. Specifically, Officer Terrell asserts that Tews’ Complaint fails to allege

sufficient facts under which Officer Terrell would be subject to liability for a

state law tort claim of battery. Id. at 12. In addition, Officer Terrell argues that

even if he was denied immunity, Tews fails to allege sufficient facts to state a

claim for battery under Florida law. See id. at 13.

If Officer Terrell is entitled to statutory immunity, Tews’ state law claim

for battery must be dismissed. Florida law provides immunity to state

employees

for any injury or damage suffered as a result of any act, event, or

omission of action in the scope of his or her employment of function,

unless such officer[s] . . . acted in bad faith or with malicious

purpose or in any manner exhibiting wanton and willful disregard

of human rights, safety, or property.

FLA. STAT. ANN. § 768.28(9)(a). Accordingly,

in order for a plaintiff to succeed in piercing the statutory immunity

defense, he must make a good faith allegation in the complaint that

the public office official either acted outside the scope of his

employment or in bad faith. The statute places an affirmative duty

on the plaintiff to satisfy this pleading requirement. This duty

cannot be satisfied by mere conclusory allegations. Without support,

the complaint must fail.

Brown v. McKinnon, 964 So.2d 173, 175 (Fla. 3d DCA 2007) (internal citations

omitted). Courts construing the bad faith prong of section 768.28 use the actual

malice standard, Parker v. State Bd. of Regents ex rel. Fla. State Univ., 724

So.2d 163, 167 (Fla. 1st DCA 1998), which means the conduct must be

committed with “ill will, hatred, spite, [or] an evil intent.” Reed v. State, 837

So.2d 366, 368–69 (Fla. 2002). Conduct meeting the wanton and willful

standard is defined as “worse than gross negligence,” Sierra v. Associated

Marine Insts., Inc., 850 So.2d 582, 593 (Fla. 2d DCA 2003), and “more

reprehensible and unacceptable than mere intentional conduct.” Richardson v.

City of Pompano Beach, 511 So.2d 1121, 1123 (Fla. 4th DCA 1987). See also

Kastritis v. City of Daytona Beach Shores, 835 F.Supp.2d 1200, 1225 (M.D. Fla.

2011) (defining these standards). Additionally, courts are reluctant to strip

officers of their immunity under section 768.28(9)(a) of the Florida Statutes. As

such, a threadbare recital that a defendant “acted maliciously and in bad faith

is conclusory” and insufficient. Brivik v. Law, 545 F. App’x 804, 807 (11th Cir.

2013).

In this regard, Tews’ Complaint is devoid of any allegations that Officer

Terrell acted with “ill will, hatred, spite, [or] an evil intent,” Reed, 837 So.2d at

368-69, or any facts suggesting that Officer Terrell “acted maliciously and in

bad faith.” Brivik, 545 F. App’x at 807. The allegations in the Complaint

suggest nothing more than “mere intentional conduct.” See Complaint at 5;

Richardson, 511 So.2d at 1123. Accordingly, Tews’ state law claim for battery

is due to be dismissed.

V. Conclusion

For the foregoing reasons, to the extent Officer Terrell seeks dismissal of

Tews’ Fourth Amendment excessive force claim in Count I on the grounds of

qualified immunity, the Motion to Dismiss is due to be denied. With regards to

Tews’ state law battery claim in Count II, because she has failed to allege facts

plausibly stating a claim, the Motion to Dismiss will be granted.

Accordingly, it is ORDERED:

Defendant’s Motion to Dismiss Plaintiff's Complaint (Doc. 3) is DENIED

in part and GRANTED in part.

a. The Motion to Dismiss is denied in part as to the excessive force

claim in Count I.

b. The Motion to Dismiss is granted in part to the extent that the

state law tort claim for battery in Count II is dismissed.

DONE AND ORDERED in Jacksonville, Florida this 19th day of

February, 2021.

United States District Judge

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Copies to:

Counsel of Record

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