# Tews v. Terrell

> District Court, M.D. Florida · February 19, 2021

URL: https://www.frixlaw.com/law-library/cases/10106930

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** February 19, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10106930

## How later opinions describe it (automated extraction)

- 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
- explaining that “conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal”

## Opinion text

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

1c28
Copies to:
Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10106930. Public record. Not legal advice.