Mathews v. Officer J. Wheatherbee

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

CARLTON XAVIER MATHEWS,

Plaintiff,

Case No. 3:16-cv-579-HES-LLL

OFFICER J. WETHERBEE, et al.,

Defendants.

ORDER

I. Status

On September 19, 2019, the Court granted in part and denied in part

Defendants’ motion for summary judgment. See Order (Doc. 117). The Court

granted the motion, finding that Defendants are entitled to summary

judgment in their favor on Plaintiff's retaliation claim, access-to-courts claim,

due process claim, any claim with respect to his medication, and all claims

against Defendants in their official capacities. The Court also granted the

motion to the extent that it dismissed as moot all requests for injunctive relief.

The Court, however, denied Defendants’ request for qualified immunity on

Plaintiffs excessive force claims against Defendants in their individual

capacities.

Defendants appealed the Court’s denial of qualified immunity. See

Notice of Appeal (Doc. 121). On December 31, 2020, the Eleventh Circuit issued

an Opinion (Doc. 130) vacating this Court’s denial of Defendants’ motion for

summary judgment on the basis of qualified immunity, and the Mandate (Doc.

131) issued on January 29, 2021. At this Court’s direction, the parties filed

supplemental briefs on the issue of Defendants’ entitlement to qualified

immunity. See Defendants’ Supplemental Brief (Doc. 134); Plaintiffs Amended

Supplemental Initial Brief (Doc. 137). Upon review, the Court grants in part

and denies in part Defendants’ request for qualified immunity on Plaintiffs

excessive force claims.

II. Plaintiff's Amended Complaint!

On December 28, 2015, Plaintiff was a pretrial detainee at the Duval

County Jail.2 On that day, Defendant Coulter approached Plaintiffs cell and

advised him that he received a copy of the employee complaint Plaintiff had

written about all three Defendants. Id. at 2. About one hour later, Plaintiff was

1 The Court’s summary of Plaintiffs allegations focuses on the facts relating to

the excessive force claims at issue.

2 Plaintiff is now a prisoner in the Florida Department of Corrections.

“sh*t bombed”? by another inmate who was a gang member, but that inmate

told Defendant Wetherbee that Plaintiff had tried to “sh*t bomb him.” Id. at 2:

see id. at 8. Defendant Wetherbee came into the dormitory to investigate, and

all the gang-member inmates were blaming Plaintiff and encouraging the

officers to “spray his azz.” Id. at 2. Prior to this incident, Plaintiff had

complained about the gang members “teaming up on [him], and sh*t bombing

[his] cell, and trying to get [him] sprayed and beat up by the Officers.” Id.

Plaintiff also requested that he “be moved immediately.” Id. Defendant

Wetherbee came to Plaintiffs cell, “gave [him] a dirty look and walked back

into the control station.” Id. “Thereafter, Bio came and cleaned up the feces

and Bio left. Then [Plaintiff] hear[d] the same [gang member] that sh*t bombed

[him] say through the vent, ‘u better get ready f*ckboy,’ ‘cuz em’ cowboyz bout

to come beat your azz.” Id. Simultaneously, Plaintiff saw Defendants

Wetherbee, Coulter, and Brabston along with other officers “putting on black

gloves, and heading out [of] the booth into the dorm where [Plaintiff] was”

housed. Id. Plaintiff thought the officers were “coming to shake [his] cell down

looking for a sh*t bomb.” Id. Defendant Wetherbee opened Plaintiffs food flap

and instructed Plaintiff to give him the “sh*t bomb.” Id. at 3. Before Plaintiff

3 A “sh*t bomb” is a bottle or other container filled with human waste. See Doc.

104-1 at 47, 58, 110-11.

could “explain [him|]self or do anything, [Defendant Wetherbee] had pulled out

his pepper gas and sprayed [Plaintiff] through [his] food flap.” Id. Plaintiff was

“temporarily blinded,” but he heard Defendant Wetherbee direct that

Plaintiffs cell door be opened. Id. At that time, Plaintiff was “blind and

[couldn't] see and [was] gasping for air.” Id. When his cell door opened, “all the

Officers [were] screaming, ‘get on the ground.” Id. Plaintiff “quickly complied

with the officers[’] order and got on the ground on [his] stomach.” Id. He then

heard the officers yelling, “‘stop resisting,’ [while] they [were] all punching and

kicking [Plaintiff] in [the] face and rib cage.” Id. One of the officers “delivered

the fatal blow with his handcuff[]s that knocked [Plaintiff] unconscious.” Id.

That punch “busted [Plaintiffs] head open, and when [he] awoke [he] was in

the restraint[] chair and Nurse Smith was washing out [his] eyes.” Id. Plaintiff

was transported to Shands Hospital where he “received stitches for [his]

injury.” Id.

III. Parties’ Positions

a. Defendants’ Position

Defendants argue they are entitled to qualified immunity on Plaintiff's

excessive force claims. They contend there is no dispute that they were acting

within the scope of their discretionary authority, and thus the burden shifts to

Plaintiff to show that they violated his constitutional rights and those rights

were clearly established. According to Defendants, Plaintiff has failed to meet

his burden. Defendants contend that they “used objectively reasonable force

necessary to maintain order and control” Plaintiff. Doc. 134 at 13. They further

contend that “there is no clearly established law that would prohibit the use of

pepper spray on a detainee who refuses to turn over contraband” or to use

“force to subdue an apparently uncooperative [Plaintiff] before placing him in

handcuffs.” Id. at 20.

Defendants also urge the Court to disregard Plaintiffs “testimony that

was blatantly contradicted, fanciful, and admitted by him to be untruthful.” Id.

at 22 (emphasis omitted). According to Defendants, “[t]he medical evidence

was not consistent with [Plaintiff] having been kicked or punched,” and

reviewing the entirety of the record, “no reasonable jury could believe that he

was kicked and punched or that he received any injury other than a de minimis

laceration by his ear.” Id. at 22-23. Defendants also contend that “there is no

record evidence regarding excessive force after the time of the pepper spray.”

Id. at 23. Moreover, Defendants argue the Court should disregard the

statements in Plaintiffs operative complaint that conflict with his deposition

testimony. Id. at 24. Finally, Defendants assert “the Court should disregard

[Plaintiffs] statements to the extent that they do not present the perspective

of the officers.” Id. at 25.

b. Plaintiff's Position

Plaintiff asserts he received a “very serious injury that required for [him]

to be sent to Shands Hospital.” Doc. 112 at 1. According to Plaintiff, he states

that the head injury he received “has caused many mental mood swings and

(absent) proper treatment [he] will continue to suffer from this mental

handicap.” Id. at 2. He states that he has received multiple disciplinary reports

as a result of the trauma he suffered. Id. He contends that the medical records

prove Defendants violated his constitutional rights by using excessive force on

him for no reason. See id. at 1-2.

As to Defendants’ assertion that Plaintiffs story has changed over time,

Plaintiff claims that he “has strengthened his claim by being straightforward

in deposition,” and that he has not admitted to any inconsistencies among his

complaint, sworn statements, and deposition. Id. at 3. As to the pepper

spraying, he states that “[e]ven if [PJlaintiff did refuse [Defendant]

Wetherbee[’s] verbal order, this still dofes not] [permit] [Defendant] Wetherbee

to immediately pepper spray’ him. Id. at 5. He goes on further to describe the

incidents as he did in his Amended Complaint.

In his supplemental brief, Plaintiff contends that Defendants’ counsel

has provided inaccurate information to the Court. He asserts that he only

received “approximate[ly] 22 disciplinary reports in a 3 1/2 year time span,”

rather than 30 as suggested by defense counsel. Doc. 137 at 1. He argues that

Defendants “committed an aggravated battery on” him, id. at 5, violated

Florida Model Jail Standards, id. at 7, and are not entitled to qualified

immunity, id. at 5.

IV. Summary Judgment Standard

“Summary judgment is appropriate where there is no genuine issue as

to any material fact and the moving party is entitled to judgment as a matter

of law.” Hinkle v. Midland Credit Mgmt., Inc., 827 F.3d 1295, 1300 (11th Cir.

2016) (quoting Jurich v. Compass Marine, Inc., 764 F.3d 1302, 1304 (11th Cir.

2014)); see Fed. R. Civ. P. 56(a). “A genuine issue of material fact exists when

the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Bowen v. Manheim Remarketing, Inc., 882 F.3d 1358, 1362

(11th Cir. 2018) (quotations and citation omitted); see Hornsby-Culpepper v.

Ware, 906 F.3d 1302, 1311 (11th Cir. 2018) (“Where the record taken as a whole

could not lead a rational trier of fact to find for the non-moving party, there is

no genuine issue for trial.” (quotations and citation omitted)). In considering a

summary judgment motion, the Court views “the evidence and all reasonable

inferences drawn from it in the light most favorable to the nonmoving party.”

Hornsby-Culpepper, 906 F.3d at 1311 (quotations and citation omitted).

“[W]hen the moving party has carried its burden under Rule 56(c), its

opponent must do more than simply show that there is some metaphysical

doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986) (footnote and citation omitted); see Winborn v.

Supreme Beverage Co. Inc., 572 F. App’x 672, 674 (11th Cir. 2014) (per curiam)

(If the movant satisfies the burden of production showing that there is no

genuine issue of fact, ‘the nonmoving party must present evidence beyond the

pleadings showing that a reasonable jury could find in its favor.” (quoting

Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008)). “A ‘mere scintilla’ of

evidence supporting the opposing party’s position will not suffice; there must

be enough of a showing that the jury could reasonably find for that party.”

Loren v. Sasser, 309 F.3d 1296, 1302 (11th Cir. 2002) (quoting Walker v.

Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (internal quotations omitted)).

V. Analysis‘

“The qualified immunity defense shields ‘government officials

performing discretionary functions . . . from liability for civil damages insofar

as their conduct does not violate clearly established statutory or constitutional

1 For purposes of summary judgment, the Court views the evidence and all

reasonable inferences therefrom in the light most favorable to Plaintiff. Thus,

the facts relied on in the Court’s analysis may differ from those that can be

ultimately proven.

rights of which a reasonable person would have known.” Corbitt v. Vickers,

929 F.3d 1304, 1311 (11th Cir. 2019) (quoting Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982)). “To be entitled to qualified immunity, the defendant must

first establish that he was acting within the scope of his discretionary

authority.” Gaines v. Wardynski, 871 F.3d 1203, 1208 (11th Cir. 2017) (citation

omitted). If the defendant so shows, the burden shifts to the plaintiff to

demonstrate that the defendant violated his constitutional rights and at the

time of the violation, those rights were clearly established. Id.

Here, there is no dispute that Defendants were acting in the scope of

their discretionary authority. Thus, Plaintiff must demonstrate that

Defendants violated his constitutional rights and at the time of the violation,

those rights were clearly established.

For a pretrial detainee to establish an excessive force claim, he “must

show only that the force purposely or knowingly used against him was

objectively unreasonable.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473

(2015).

[O]bjective reasonableness turns on the “facts and

circumstances of each particular case.” Graham v.

Connor, 490 U.S. 386, 396 (1989). A court must make

this determination from the perspective of a

reasonable officer on the scene, including what the

officer knew at the time, not with the 20/20 vision of

hindsight. See id. A court must also account for the

“legitimate interests that stem from [the

government's] need to manage the facility in which the

individual is detained,” appropriately deferring to

“policies and practices that in th[e] judgment” of jail

officials “are needed to preserve internal order and

discipline and to maintain institutional security.” Bell

v. Wolfish, 441 U.S. 520, 540, 547 (1979).

Id. Gnternal citations modified): see also Piazza v. Jefferson Cnty., Ala., 923

F.3d 947, 953 (11th Cir. 2019). Courts recognize that “officers facing

disturbances are often forced to make split-second judgments about the need

for such force in circumstances that are tense, uncertain, and rapidly evolving.”

Piazza, 923 F.3d at 953 (quotations and citation omitted).

The Supreme Court has identified a non-exclusive list of factors that

“may bear on the reasonableness or unreasonableness of the force used:”

the relationship between the need for the use of force

and the amount of force used: the extent of the

plaintiffs injury; any effort made by the officer to

temper or to limit the amount of force; the severity of

the security problem at issue: the threat reasonably

perceived by the officer; and whether the plaintiff was

actively resisting. See, e.g., Graham, 490 U.S. at 396.

Kingsley, 135 S. Ct. at 2473 (internal citations modified).

According to Plaintiff, on December 23, 2015, while housed in

disciplinary confinement, Plaintiff and other inmates were “throwing sh*t” at

each other, and they created an unsanitary and potentially dangerous

situation requiring biohazard cleanup. After the area was cleaned, Defendant

Wetherbee approached Plaintiff's cell, opened the food flap, and said something

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to the effect of, “where is the sh*t bomb?” Although Plaintiff had a shampoo

bottle and other cups filled with waste in his cell,5 Plaintiff responded, in

substance, “[W]hat sh*t bomb, man?’ Defendant Wetherbee then sprayed

chemical agents into Plaintiff's cell through the food flap.

At the time the chemical agents were administered, Plaintiff was not

standing at his cell door; rather, he was standing close to the toilet in his cell,

but he claims the spray “[h]it [him] right in the face.” Doc. 104-1 at 81, 83.

Plaintiff was “blinded” by the chemical agents, but he heard Defendant

Wetherbee direct that Plaintiff's cell door be opened. Id. at 83; see Doc. 21 at

3. According to Plaintiff, officers were yelling at him to get on the ground.

> Plaintiff testified that he had a shampoo bottle filled with waste and he

further stated, “I probably had some cups in there, you know, to make my little

mix ....I told you we had a little war - - a little war going on.” Doc. 104-1 at

110-11.

° Plaintiffs allegations regarding this exchange vary among his Amended

Complaint, deposition, and other filings. In the Amended Complaint, Plaintiff

alleges: “Once Officer J. Whetherbee [sic] got to my cell he opened my food flap

and stated, ‘give me the sh*t the bomb.’ Before I had a chance to explain myself

or do anything, Officer J. Whetherbee [sic] had pulled out his pepper gas and

sprayed me through my food flap.” Doc. 21 at 3. At deposition, when describing

what happened after Defendant Wetherbee asked him for the “sh*t bomb,”

Plaintiff stated: “Basically I asked him, like, what - - I basically played stupid.

I'm like, what waste bomb. But before I could say anything else, he was - - he

was spraying me.” Doc. 104-1 at 80. In his Supplemental Brief, Plaintiff states.

“Officer Wetherbee unlocked plaintiff food flap and stated, ‘Where’s the sh*t

bomb,[’] within second [sic] before plaintiff could bearly [sic] finish his sentence

Wetherbee had OC sprayed him.” Doc. 137 at 3-4.

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Plaintiff lay on the ground, outside of his cell, and he was punched and kicked

repeatedly. See Doc. 104-1 at 83-84; see Doc. 21 at 3. After Plaintiff was

handcuffed, he was placed in a restraint chair. Within ten to thirty minutes of

being placed in the restraint chair, a nurse examined Plaintiff and rinsed out

his eyes. See Doc. 104-1 at 54.

a. Defendant Wetherbee’s Use of Chemical Agents

The Eleventh Circuit has recognized chemical agents as an acceptable

non-lethal use of force so long as a valid penological reason supports such force.

See Sconiers v. Lockhart, 946 F.3d 1256, 1264 (11th Cir. 2020); Thomas v.

Bryant, 614 F.3d 1288, 1310-11 (11th Cir. 2010); Danley v. Allen, 540 F.3d

1298, 1306 (11th Cir. 2008), overruled_on other grounds as recognized by

Randall v. Scott, 610 F.3d 701, 709-10 (11th Cir. 2010). “Given that pepper

spray ordinarily causes only temporary discomfort, it may be reasonably

employed against potentially violent suspects, especially those suspects who

have already assaulted another person and remain armed.” McCormick v. City

of Fort Lauderdale, 333 F.3d 1234, 1245 (11th Cir. 2003)

In this circumstance, Defendant Wetherbee was dealing with an

unsanitary and unstable environment involving a potentially dangerous

pretrial detainee. When Defendant Wetherbee administered the chemical

agents, he knew Plaintiff was housed in disciplinary confinement and that

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approximately one week earlier, Plaintiff had intentionally flooded his cell.’

Defendant Wetherbee also knew that Plaintiff and other inmates had just been

throwing “sh*t bombs” at each other in the dormitory.§ And, when ordered to

do so, Plaintiff did not immediately turn over the “sh*t bomb” supplies that

were inside his cell. Thus, Defendant Wetherbee was entitled to use some force

to gain Plaintiffs compliance.

Considering the factors outlined in Kingsley, the Court concludes that

Defendant Wetherbee’s use of chemical agents was objectively reasonable and

thus did not violate Plaintiff's constitutional rights. The situation was “tense,

uncertain, and rapidly evolving”; Plaintiff was a threat to others and was

disobeying lawful commands to relinquish contraband:? the amount of force

See Doc. 104-1 at 60-61 (Plaintiff testifying that approximately one week

before the use of force at issue, he flooded his cell, and Defendants pulled him

out of his cell and talked to him about it).

* Defendants submitted copies of Plaintiffs disciplinary history, but they did

not submit any evidence showing that Defendants Wetherbee, Coulter, and

Brabston knew of Plaintiffs disciplinary history. See Kingsley, 135 S. Ct. at

2473 (“A court must make this determination from the perspective of a

reasonable officer on the scene, including what the officer knew at the time,

not with the 20/20 vision of hindsight.” (emphasis added)). Thus, the Court will

not assume that Defendants knew of Plaintiff's disciplinary history.

Plaintiff was aware that the “sh*t bomb” supplies were considered

contraband. See Doc. 104-1 at 80.

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used was minimal (one or two bursts);!° and Defendants ensured Plaintiff

received immediate medical care after they subdued him, and Plaintiff did not

complain of lasting effects from the spray.!!

Although Plaintiff quarrels with the timing of Defendant Wetherbee’s

deployment of the chemical agents,” he admits that he had contraband in his

cell and did not turn it over when asked to do so. Defendant Wetherbee did not

have to wait to be sprayed with human waste before deploying the chemical

agents, nor did he have to convince Plaintiff to comply with his lawful

command. See Danley, 540 F.3d at 1307 (“[P]rison guards do not have the

luxury or obligation to convince every inmate that their orders are reasonable

and well-thought out.”). Accordingly, Plaintiff fails to show the violation of a

constitutional right as to Defendant Wetherbee’s use of chemical agents.

10 Plaintiff agreed at deposition that he was sprayed one time, Doc. 104-1 at

80-81, but Defendant Wetherbee’s narrative report indicates two one-second

bursts of chemical agents were deployed into Plaintiff's cell, Doc. 112-12 at 5.

Indeed, chemical agents are “designed to disable a suspect without causing

permanent physical injury.” Vinyard v. Wilson, 311 F.3d 1340, 1348 (11th Cir.

2002) (quotations and citations omitted).

2 Plaintiff argues that Defendant Wetherbee violated the jail’s policy on the

use of chemical agents. However, a violation of such policies, without more,

does not violate an inmate’s constitutional rights. See Sandin v. Conner, 515

U.S. 472, 481-82 (1995) (recognizing that prison regulations are “not designed

to confer rights on inmates’).

14

Kven if the Court were to conclude Defendant Wetherbee’s use of

chemical agents was objectively unreasonable, Plaintiff has not pointed to any

clearly established law that would have placed Defendant Wetherbee on notice

that the use of chemical agents in this situation arose to unconstitutional

excessive force. Rather, Plaintiff cites to broad legal principles relating to

excessive force. But these broad principles do not apply with “obvious clarity”

to the specific situation facing Defendant Wetherbee. See Johnson v. Conway,

688 F. App’x 700, 706-07 (11th Cir. 2017) (“[I]f.a broad principle in case law is

to establish clearly the law applicable to a specific set of facts facing a

governmental official, it must do so with obvious clarity to the point that every

objectively reasonable government official facing the circumstances would

know that the official’s conduct did violate federal law when the official acted.”

(quoting Vinyard v. Wilson, 311 F.3d 1340, 1351 (11th Cir. 2002)). Plaintiff has

failed to show that Defendant Wetherbee’s conduct “was so far beyond the hazy

border between excessive and acceptable force that [he] had to know he was

violating the Constitution even without caselaw on point.” See id. (quoting Fils

v. City of Aventura, 647 F.3d 1272, 1291 (11th Cir. 2011)).

Thus, considering the foregoing, the Court finds that Defendant

Wetherbee is entitled to qualified immunity on Plaintiffs excessive force claim

regarding the use of chemical agents. It follows that, to the extent Plaintiff

15

attempts to hold Defendants Coulter and Brabston liable for the chemical

spraying, he cannot do so based on the Court’s finding, as they did not

administer the chemical agents and Defendant Wetherbee’s use of chemical

agents was not violative of Plaintiffs constitutional rights.

b. Defendants’ Use of Physical Force

Plaintiff alleges that Defendants Wetherbee, Coulter, and Brabston

participated in the use of force outside of his cell after he was chemically

sprayed. Defendants seek qualified immunity on this claim as well. “Because

§ 1983 ‘requires proof of an affirmative causal connection between the official’s

acts or omissions and the alleged constitutional deprivation,’ each defendant is

entitled to an independent qualified-immunity analysis as it relates to his or

her actions and omissions.” Alcocer v. Mills, 906 F.3d 944, 951 (11th Cir. 2018)

(quoting Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986)).

Plaintiff alleges that Defendants Wetherbee, Coulter, and Brabston

collectively used excessive force on him, see Doc. 21 at 2-3, but he does not

know which officers were punching and/or kicking him, see Doc. 104-1 at 84-

86, 98. The Eleventh Circuit has recognized “that a plaintiff is not required to

specifically identify which particular officer used excessive force (and which

officers failed to intervene) in order to overcome summary judgment.” Hunter

v. Leeds, City of, 941 F.3d 1265, 1282 n.19 (11th Cir. 2019). “Were this the law,

16

all that police officers would have to do to use excessive force on an arrestee

without fear of consequence would be to put a bag over the arrestee’s head and

administer the beating in silence.” Velazquez v. City of Hialeah, 484 F.3d 1340,

1342 (11th Cir. 2007); see also Alexandre v. Ortiz, 789 F. App’x 169, 176 (11th

Cir. 2019). Because the evidence does not illuminate which Defendant or

Defendants participated in the alleged kicking and punching or the extent of

their participation in the alleged conduct, the Court is unable to individually

analyze the actions of each Defendant. See Velazquez, 484 F.3d at 1342

(rejecting the defendants’ argument that “because [the plaintiff] did not see

who beat him, if anyone did, there would be no evidence at trial from which a

jury might assign liability for the beating”). Instead, the Court’s analysis

apples equally to Defendants Wetherbee, Coulter, and Brabston.

Plaintiff alleges that he saw Defendants Wetherbee, Coulter. and

Brabston, along with three or four other unidentified officers, “putting on black

gloves, and heading out [of] the booth into the dorm where [he] was at.” Doc.

21 at 2. Defendant Wetherbee approached Plaintiffs cell first, and the use of

chemical agents occurred (discussed supra). Plaintiff was “blind” and “gasping

for air.” Id. at 3. Plaintiff continues,

Once my cell door became open I heard all the Officers

screaming, “get on the ground,” “get on the ground.”

Therefore, I quickly complied with the officers|’] order

and got on the ground on my stomach. Once I lay on

17

the ground, I heard all the officers yelling, “stop

resisting,’ “stop resisting,” and as they [were] yelling

this, they are all punching and kicking me in my face

and rib cage. And before I knew it, one of them

delivered the fatal blow with his handcuffl]s that

knocked me unconscious.

Id. He then states that when he awoke, he was in the restraint chair, and

Nurse Smith was washing out his eyes. Id.

At deposition, Plaintiff testified as to the placement of his hands when

he was on the ground:

@. Did you try to defend yourself at all?

A. No, sir.

Q. Did you try to block the punches or protect

your face?

A. I did. I just basically just laid - - laid on the

ground. You know, I thought - - I thought they were

just - - I thought they were just going probably just

handcuff me or - - that’s why I got on - - that’s why I

got on the ground. I thought they were going probably

just, like, handcuff me or something like that.

Q. When you were laying on the ground and the

officers were punching and kicking you, where were

your hands?

A. Um, that - - that right there - - that right

there. It happened so fast - - that right there, I

probably - - most likely, I probably had my hands

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trying to - - trying to protect my face. But then, again,

I’m not - - I’m not for certain - - 100 percent certain.

Doc. 104-1 at 86. Plaintiff also testified at deposition that he was “not one

hundred percent sure” if he was knocked unconscious, but “it was pretty much,

like ...a blackout.” Id. at 88, 89. Further, Plaintiff testified that he could not

remember exactly when he was handcuffed, and he acknowledged that he

“can't refute” that the officers handcuffed him after their use of force. Id. at

155-56. He testified that the punching and kicking lasted about two or three

minutes. Id. at 87-88.

As a result of the force used, Plaintiff had a superficial laceration that

was 1.5 centimeters long on his ear. The laceration was treated with glue (not

stitches). See id. at 92-93. At deposition, he testified that he also had

“[s]oreness and bruises and stuff like that.” Id. at 138, 140-41. He further

stated that he has “mental damage” in that “every time [he] see[s] the police,”

he feels like they are trying to harm him. Id. at 156.

Viewing the facts in the light most favorable to Plaintiff, as the Court

must, the Court finds Defendants are not entitled to qualified immunity as to

the alleged use of physical force. After Plaintiff was sprayed with chemical

agents, according to him, he complied with officers’ commands by lying on his

stomach on the ground. Then, according to Plaintiff, Defendants kicked and

punched him repeatedly. Defendants argue that Plaintiff was non-compliant

19

because Defendant Wetherbee’s “Response to Resistance Report,” which

Plaintiff filed, indicates Defendant Wetherbee ordered Plaintiff to submit to

hand restraints several times before opening his cell door, see Doc. 112-12 at

5, and Plaintiff testified at deposition that his hands were “probably” by his

face when he was lying on the floor, Doc. 104-1 at 86. Defendants did not

submit any affidavits or declarations explaining their version of events, but

they argue that Plaintiff “has never contended, and there is no evidence in the

record that he was not ordered to be handcuffed.” Doc. 134 at 5.

While some force may have been necessary to place Plaintiff in

handcuffs, Plaintiff alleges the kicking and punching lasted for two to three

minutes, during which time he remained face down on the floor with his hands

maybe by his face, which suggests his hands were visible. “[I]f force used

against a pretrial detainee is more severe than is necessary to subdue him or

otherwise achieve a permissible governmental objective, it constitutes

‘punishment’ and is therefore unconstitutional.” Piazza, 923 F.3d at 952. Even

if a detainee is initially resisting, once he “has stopped resisting there is no

longer a need for force, so the use of force thereafter is disproportionate to the

need.” Id. at 953 (quoting Danley, 540 F.3d at 1309): see also Skrtich v.

Thornton, 280 F.3d 1295, 1304 (11th Cir. 2002) (“The use of force must stop

when the need for it to maintain or restore discipline no longer exists.”).

20

Taking Plaintiffs version of the facts as true, there was no need for such

force after he lay on the floor and was under the effects of chemical agents.

This is so even if Defendants ordered Plaintiff to submit to handcuffs and

Plaintiffs hands were by his face. A reasonable officer would not have

perceived Plaintiff as a threat at that time, nor would a reasonable officer see

Plaintiff as posing a security issue as there is no indication that Plaintiff was

attempting to assault the officers while he was lying on the ground or that he

was otherwise being aggressive toward the officers. While officers must make

“split-second judgments” in “tense, uncertain, and rapidly evolving” situations,

Piazza, 923 F.3d at 953, a reasonable officer in Defendants’ positions would

know it is not reasonable to repeatedly punch and kick an inmate while he is

lying prone on the ground even for a few seconds, let alone up to three minutes.

Defendants argue that Plaintiffs allegations are not credible because his

allegations and deposition testimony conflict and because he did not sustain

injuries one would expect to have resulted from the conduct he describes. For

instance, Defendants note that, in his Amended Complaint, Plaintiff alleged

he was knocked unconscious and woke up when he was in the restraint chair

with the nurse washing out his eyes, but at his deposition, he testified that he

was walked down the stairs and placed in the restraint chair where he waited

for the nurse. See Doc. 134 at 6-7. Additionally, Defendants argue Plaintiffs

21

assertion “that the ‘punching and kicking’ lasted ‘two or three minutes” cannot

be believed because he “also said that he was ‘knocked unconscious’ ‘before [he]

knew it.” Id. at 6. Finally, Defendants emphasize the only documented injury

Plaintiff sustained was a superficial laceration that was 1.5 centimeters long

on his ear, which was treated with glue (not stitches).!3 See id. at 7-9, 22-23.

“Even if [a plaintiff's] sworn statements turn out to be exaggerations or

false, they are enough to raise a genuine issue of material fact.” Sears v.

Roberts, 922 F.3d 1199, 1209 (11th Cir. 2019). And a “plaintiff's testimony

cannot be discounted on summary judgment unless it is blatantly contradicted

by the record, blatantly inconsistent, or incredible as a matter of law, meaning

that it relates to facts that could not have possibly been observed or events that

are contrary to the laws of nature.” Id. at 1208 (citation omitted). While

“resulting injuries can be an indicator, however imperfect, of the severity of the

force that caused them,” the “lack of significant injury [does not] always and

everywhere mean{] that the force used was reasonable.” Crocker v. Beatty, 995

13 Nurse Practitioner Win Tate testified that if someone was kicked and

punched by several people, she would expect to see more injuries than Plaintiff

had and would expect the person to be in pain. See Doc. 104-5 at 40-41. When

asked if she would expect to see symptoms if someone was beaten for two to

three minutes, she responded: “Well, it depends. I mean, if you're hitting

lightly, then, no, but, if you're really punching - - and they can - - you know,

then - - then I would expect to see, yeah, a lot.” Id. at 41.

Ze

F.3d 1232, 1251, 1251 n.17 (11th Cir. 2021), petition for cert. docketed, No. 21-

786 (U.S. Nov. 29, 2021).

Any potential discrepancies in Plaintiff's story may cause a fact finder to

discredit his version of events, but it is not the province of the Court on

summary judgment to weigh the evidence or make credibility determinations.

See Sears, 922 F.3d at 1208-09; see also Rivera v. LeBron, 824 F. App x 838,

842 (11th Cir. 2020) (“As a general rule, that kind of credibility determination

is not appropriate at the summary judgment stage.”). The medical records and

discrepancies in Plaintiffs allegations are insufficient to wholly discredit his

allegations. See Sears, 922 F.3d at 1208-09 (discussing “a big difference”

between a video of an incident and documentary evidence consisting mainly of

various forms of the defendants’ testimony).!4

‘4 Defendants argue that Plaintiff “admitted that the allegations of the

amended complaint, albeit ‘verified,’ were not truthful.” Doc. 134 at 24 (citing

Doc. 104-1 at 78, 91; Doc. 112 at 3). In the cited portion of his deposition,

Plaintiff stated that he signed his Amended Complaint swearing that the

allegations were true, and that he had told the truth thus far in his deposition

testimony. Doc. 104-1 at 78. Later in the deposition, defense counsel attempted

to get Plaintiff to admit that his allegations in the Amended Complaint on a

particular point were not true. See id. at 91. Although not cited by Defendants,

in seemingly referring to the allegations in his Amended Complaint, Plaintiff

stated: “[E]verything is pretty much the truth.” Id. at 92. In his summary

judgment response, Plaintiff said he has not admitted that his allegations are

not completed true. Doc. 112 at 3.

“When a party has given clear answers to unambiguous questions which

negate the existence of any genuine issue of material fact [for summary

judgment], that party cannot thereafter create such an issue with an affidavit

23

Plaintiff alleges that he lay on the ground in compliance with the officers’

orders, and then the punching and kicking began. Simply because Plaintiff did

not suffer significant injury does not render his allegations blatantly

contradicted. On this record, an objectively reasonable officer would neither

repeatedly punch and kick an inmate who was lying prone on the ground (even

if his hands were near his face) nor watch other officers do so. While

Defendants’ account of what transpired that day may differ from Plaintiff's

account,’° on summary judgment, the Court must view the facts in the □□□□□

most favorable to Plaintiff. On Plaintiffs facts, repeatedly kicking and

punching an inmate who was lying face down on the ground in compliance with

the officers’ orders was objectively unreasonable.

Thus, the Court turns to whether the law was clearly established. At the

time of the incident, the law regarding using force on a pretrial detainee was

well-settled such that every reasonable officer would have known that

that merely contradicts, without explanation, previously given clear

testimony.” McCormick, 333 F.3d at 1240 n.7 (quotations and citation omitted).

Even if this legal proposition applies to prior sworn statements, Plaintiffs

deposition transcript is not as clear as Defendants argue, and the Court will

not wholly discredit the allegations in the Amended Complaint.

As previously noted, Defendants did not submit their own affidavits, but

Plaintiff filed an incomplete copy of a “Response to Resistance Report”

completed by Defendant Wetherbee. See Doc. 112-12. Defendant Wetherbee’s

factual narrative differs significantly from Plaintiffs allegations.

24

repeatedly kicking and punching a non-resistant inmate lying face down on the

ground was objectively unreasonable. See Piazza, 923 F.3d at 953 (“[Blecause

force in the pretrial detainee context may be defensive or preventative—but

never punitive—the continuing use of force is impermissible when a detainee

is complying, has been forced to comply, or is clearly unable to comply.”).

Defendants had fair warning that their alleged conduct was objectively

unreasonable. See id. at 955-56; Williams v. Burton, 943 F.2d 1572, 1576 (11th

Cir. 1991) (‘The basic legal principle is that once the necessity for the

application of force ceases, any continued use of harmful force can be a

violation of the Eighth and Fourteenth Amendments, and any abuse directed

at the prisoner after he terminates his resistance to authority is an Eighth

Amendment violation.”); Robinson v. Lambert, 753 F. App’x 777, 782 (11th Cir.

2018) (citations omitted) (finding well established the law prohibiting an officer

from continuing to use force when there is no longer a need for it such that the

law applied with “obvious clarity” to the facts of the case before the Court).

Therefore, in light of the foregoing, it is

ORDERED:

1. Defendants’ request for qualified immunity on Plaintiff's excessive

force claims is GRANTED in part and DENIED in part.

25

a. The request is GRANTED to the extent that Defendants are

entitled to qualified immunity with respect to the use of

chemical agents. Judgment on that claim, as well as judgment

on the claims adjudicated by the Court's prior Order (Doc. 117

at 24 9/1.a.), is withheld pending adjudication of the remaining

claims.

b. Defendants’ request for qualified immunity related to the

alleged use of physical force is DENIED. This case will proceed

on Plaintiffs excessive force claims against Defendants in their

individual capacities with respect to the use of physical force.

2. Within 60 days from the date of this Order, the parties shall confer

in a good faith attempt to settle the remaining claims. If the parties are able

to resolve the case without further Court intervention, they shall file the

appropriate documents to close out the file. If the parties are unable to settle

the case, they shall file a notice advising whether a settlement conference with

a United States Magistrate Judge may be beneficial.

26

a. Plaintiffs Motion for Court to Deny Defendants’ Motion for

Summary of Judgment (Doc. 140) is DENIED as moot.

DONE AND ORDERED at Jacksonville, Florida, this ove day of

eS , 2022.

□□ 4 a

HAR\ bY E.S INGER

United States District Judge

JAX-3 12/23

Carlton Xavier Mathews, #J327519

Sonya Harrell Hoener, Esquire

Sean Bryan Granat, Esquire

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