# Chambliss v. Brevard County Sheriff's Office

> District Court, M.D. Florida · August 17, 2023

URL: https://www.frixlaw.com/law-library/cases/10113689

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 17, 2023
- **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/10113689

## How later opinions describe it (automated extraction)

- holding if there are facts inconsistent with granting qualified immunity at summary judgment, then “the case and the qualified immunity issue along with it will proceed to trial”
- finding a blow that broke “a previously fractious” suspect’s arm was excessive where arrestee had ceased all resistance

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION

TIMOTHY SAID CHAMBLISS,

Plaintiff,

v. Case No: 6:22-cv-44-PGB-RMN

BREVARD COUNTY SHERIFF’S
OFFICE, WAYNE IVEY and
TYLER HARRELL,

Defendants.
/
ORDER
This cause comes before the Court on Defendants Wayne Ivey and Tyler
Harrell’s (collectively, the “Defendants”) Amended Motion for Summary
Judgment. (Doc. 59 (the “Motion”)). Plaintiff Timothy Chambliss (“Chambliss”)
responded in opposition (Doc. 60), and Defendants subsequently replied (Doc.
64). Upon consideration, Defendants’ Motion is due to be granted in part and
denied in part.
I. BACKGROUND
The following lawsuit concerns whether Brevard County Sheriff’s Deputy
Tyler Harrell (“Deputy Harrell”) used excessive force while arresting Chambliss.
(Doc. 16). During a search, Chambliss “wiggl[ed]” away from Deputy Harrell’s
hand, who then took him to the ground. (Doc. 46, 45:4–20).1 Less than a second
later, a video depicts Deputy Harrell delivering a single blow to the back of
Chambliss’s head with his prosthetic arm. (Docs. 51, 55).2

The scene: South Cocoa, March 20, 2019, shortly before 4 p.m. (Doc. 46, p.
142). Deputy Harrell was patrolling Peachtree Street in the area near Prospect Park
when a man, Chambliss, caught his eye. (Id.). Morning shift had taken a stolen
vehicle report on the northwest side of town. (Id. at p. 303). They found the car
parked in front of the corner store where Peachtree Street crosses Fiske Boulevard.

(Id. at p. 142).3 Store surveillance video captured a blurry glimpse of the suspect:
a thin, middle-aged black man, roughly 5’7” tall with protruding front teeth, who
frequents the convenience store one block east witnesses said. (Id.; Doc. 47, p.
9:10–11; Doc. 58, ¶ 5). Deputy Harrell had been roving the area hoping to arrest
the guy. (Doc. 46, p. 142; Doc. 47, p. 9:18–19).
The neighborhood was no stranger to crime. (Doc. 47, 31:21–24). The

convenience store where the suspect allegedly spent his time, known to Chambliss

1 Unless otherwise noted, the facts as presented here generally represent Chambliss’s version
of events when the two parties differ. See Scott v. Harris, 550 U.S. 372, 378 (2007)
(highlighting that courts generally adopt the plaintiff’s version of the facts in a qualified
immunity case).

2 Deputy Harrell wears a prosthetic limb made of aluminum, rubber, and carbon fiber on his
right arm below the elbow. (Doc. 47, 18:7–17). He weighs about 220 pounds. (Id. at 18:21).

3 The victim had invited a man, “Mike,” into her home. (Doc. 46, p. 303). He said he could fix
her garage lights. (Id.). Instead, he took her keys. (Id.). When the deputy found the car, a man
named Octavious James was sitting in the passenger seat with an open bottle of cheap booze
in hand. (Id. at p. 308). However, the victim said he was not “Mike.” (Id.). Even so, arresting
Octavious James “cleared” the stolen vehicle case, according to the investigation report. (Id.
56:4–6, p. 309).
as “Bald Head,” had a history with drug activity and shootings. (Id.; Doc. 46,
66:25–67:13). Deputy Harrell knew as much. (Doc. 47, 31:21–24). Ten years on the
beat, stores like Bald Head were a regular stop on his watch. (Id. 1:11–22, 32:2–

19). People hanging around out front would often scatter when his marked squad
car rolled up. (Id. 32:11–16).
Chambliss stood amid a group of ten or so people outside the convenience
store when Deputy Harrell spotted him. (Doc. 46, 36:9–11, p. 142). The 5’10” man
was wearing a gray hoodie and jeans. (Id. at pp. 137, 142). Gold slugs capped his

front teeth. (Id. at 49:5–23). He looks like the suspect, the deputy thought. (Doc.
47, 7:19). Deputy Harrell wanted to identify him for a photo lineup. (Doc. 46, p.
142). He started backing into a parking spot out front. (Id. at 32:3–23).
Chambliss was already preparing to leave the store when he saw Deputy
Harrell pull into the parking lot. (Id. 33:10–13; Doc. 58, ¶ 7). He did not have a
valid driver’s license. (Doc. 58, ¶ 7). His car was parked out front. (Id.). Getting

behind the wheel in front of the deputy was not a good idea, he surmised. (Doc. 46,
32:3–24). The small amount of marijuana in his front pocket would not help,
either. (Id. 37:17–18, 47:25–48:6). He headed away from the store on foot toward
Prospect Park. (Doc. 58, ¶ 7).
Dressed in uniform, Deputy Harrell got out of his patrol car and followed

quickly behind. (Id. ¶ 9). He tried to get his attention, but Chambliss ignored him.
(Doc. 46, 34:8–14). Chambliss made it about a block from the store before he
finally turned around and acknowledged him. (Id. 33:15–16, 40:1–23).
“What’s your name?” Deputy Harrell asked. (Id. 36:12–15). Chambliss gave
it to him along with his date of birth. (Id.). Deputy Harrell said he was lying. (Id.).
He asked to see his identification. (Id. 36:19–20). Chambliss did not have any on

him, he said. (Id. 37:7–8). Deputy Harrell asked him to walk back to his patrol car
so he could run his name. (Id. 39:12–13). He obliged. (Id.).
Once the two reached the squad car, Deputy Harrell said he smelled
marijuana. (Id. 44:19–22). Chambliss was not surprised. (Id. 67:8–10). Frequent
drug activity often made the storefront smell like marijuana. (Id.). What did you

drop on the ground? Deputy Harrell asked. (Id. 44:19–20). Nothing, Chambliss
said, confused. (See id. 44:20–22).4 Deputy Harrell commanded Chambliss to turn
around and place his hands on the vehicle, preparing to search him. (Id. 43:13–
15).5 Chambliss complied. (Doc. 47, 14:15–18). The deputy started at the top with
Chambliss’s arms and worked his way down. (Id.). But Chambliss “wiggl[ed]” away
from the deputy’s hand once he reached into his pockets. (Doc. 46, 45:4–20).

Chambliss claims Deputy Harrell then slung him to the ground without
warning. (Id. 47:8–18). Deputy Harrell, on the other hand, contends Chambliss
first tried to flee and then fight him, ignoring commands to stop resisting. (Id. at
p. 142).6 Regardless, Deputy Harrell got behind Chambliss in a stance where he

4 In his deposition, Deputy Harrell said Chambliss tossed drugs during a struggle later in the
encounter. (Doc. 47, 34:22–35:19).

5 Deputy Harrell claims to have informed Chambliss that he had probable cause to search him.
(Doc. 47, 14:7–13). Chambliss disagrees. (Doc. 46, 43:13–15).

6 According to Deputy Harrell, Chambliss pushed off the patrol car and tried to run away, but
the deputy grabbed the back of his hoodie. (Doc. 46, p. 142; Doc. 47, 14:15–23). Chambliss
had “control.” (Doc. 47, 16:13-19). A bystander recorded the next twenty-six
seconds of their encounter with a cellphone. (Docs. 51, 55).
The first shot shows Deputy Harrell crouched behind Chambliss, leaning up
against the rear of a white sedan parked one space away from the deputy’s patrol
car. The camera zooms in. Deputy Harrell has Chambliss in a hold from behind,
with his right arm bent around Chambliss’s neck and his left hand pulling his
prosthetic limb in tighter. He leans forward against his back. The two men fall to
the ground—Chambliss face-first onto the concrete with Deputy Harrell on his

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then turned around, catching Deputy Harrell’s left arm under his armpit, and took a fighting
stance, fists clenched ready to strike, he said. (Doc. 46, pp. 142-43; Doc. 47, 15:8-19). Deputy
Harrell “closed the distance,” he said, to “get dominance” all while shouting “do not fight me”
and “give me your hands” several times. (Doc. 46, p. 143; Doc. 47, 15:8—19, 16:14—19).

back straddling him. Three-tenths of a second later, Deputy Harrell pulls his right
arm back and swings his prosthetic limb against the back of Chambliss’s head.
After the blow, Chambliss remains prone on the ground with his hands

crossed on the back of his head. Deputy Harrell adjusts the hand portion of his
prosthetic limb, leans forward, and then clasps his radio. “I didn’t hit nobody,”
Chambliss says. “Put your hands behind your back and stay down!” Deputy Harrell
commands. Chambliss immediately complies and cannot be heard saying anything
else. Deputy Harrell, still straddled across his back, starts putting him in

handcuffs. The video ends there.7
Deputy Harrell searched Chambliss incident to arrest but did not find
anything on him. (Doc. 47, 34:11–17). He confiscated about 1.5 grams of marijuana
from elsewhere at the scene. (Id.; Doc. 46, p. 147). Chambliss complained that his
teeth hurt and that his blood-glucose level was high. (Doc. 58, ¶ 25). The Cocoa
Fire Department responded and assessed Chambliss, determining he needed no

further medical attention. (Id.). Deputy Harrell then placed Chambliss into his
patrol car and booked him in the Brevard County Jail. (Id.; Doc. 46, p. 137).
Chambliss later agreed to plead no contest to misdemeanor charges of marijuana
possession and resisting arrest without violence. Plea Agreement & Judgment,

7 When a court is presented with a videotape at summary judgment, absent any allegation or
indication of alteration or distortion of the depicted events, the court should “view[] the facts
in the light depicted by the videotape.” Scott, 550 U.S. at 381.
Docket Nos. 43–45, State v. Chambliss, Case No. 05-2019-CF-020931 (Fla. 18th
Cir. Ct. Dec. 20, 2019).8
Chambliss filed this civil rights complaint under 42 U.S.C. § 1983 alleging

excessive force (Counts I, III, IV) against Deputy Harrell and Brevard County
Sheriff Wayne Ivey (“Sheriff Ivey”) in his official capacity. (Doc. 16, ¶¶ 35–48,
57–72). Additionally, Chambliss brings two state-law claims—a battery action
against Deputy Harrell (Count II) and a negligent retention action against Sheriff
Ivey (Count V). (Id. ¶¶ 49–56, 73–79). Sheriff Ivey, in his official capacity,

answered Chambliss’s complaint with a counterclaim under Fla. Stat. § 960.239
for $9,950 in incarceration costs for time in the Brevard County Jail. (Doc. 22, pp.
10–11).
Defendants now seek summary judgment as to all claims on the basis of
qualified immunity, statutory immunity under Fla. Stat. § 768.28(9)(a), and the
factual record before the Court. (Doc. 59). Sheriff Ivey further moves for summary

judgment on his counterclaim arguing the facts are not in dispute. (Id.). Chambliss
responded in opposition (D0c. 60), and Defendants then replied (Doc. 64).
Accordingly, the matter is now ripe for review.
II. STANDARD OF REVIEW
“The court shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment

8 A district court may take judicial notice of public records, such as a document filed in another
court. Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278 (11th Cir. 1999).
as a matter of law.” FED. R. CIV. P. 56(a). The party moving for summary judgment
must “cit[e] to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations,

stipulations . . ., admissions, interrogatory answers, or other materials” to support
its position that it is entitled to summary judgment. FED. R. CIV. P. 56(c)(1)(A).
“The court need consider only the cited materials.” FED. R. CIV. P. 56(c)(3).
A genuine dispute of material fact is one from which “a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). However, “[a] mere scintilla of evidence in support of the
non-movant is insufficient to defeat a motion for summary judgment.” Kesinger
ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1249–50 (11th Cir. 2004)
(citing Anderson, 477 U.S. at 247). To defeat a motion for summary judgment, the
non-moving party must “go beyond the pleadings, and present affirmative
evidence to show that a genuine issue of material fact exists.” Porter v. Ray, 461

F.3d 1315, 1320 (11th Cir. 2006). The Court must draw all reasonable inferences in
favor of the non-moving party, but may disregard assertions that are “blatantly
contradicted” by record evidence, such as videotape. See Scott, 550 U.S. at 380.
III. ANALYSIS
Section 1983 provides the procedural mechanism for vindicating

constitutionally protected rights violated by persons who act under color of state
law. Laster v. City of Tampa Police Dep’t, 575 F. App’x 869, 872 (11th Cir. 2014)
(per curiam). Included within the Fourth Amendment’s protection against
unreasonable searches and seizures is the guarantee that all individuals shall be
free from the use of excessive force by law enforcement during the course of an
arrest. Fils v. City of Aventura, 647 F.3d 1272, 1287 (11th Cir. 2011). As such, a

sheriff’s deputy violates the Fourth Amendment and will be liable under § 1983
when he inflicts unreasonable injury while attempting to effect a suspect’s arrest.
See id. A municipality such as the Brevard County Sheriff’s Office can also be liable
for the unconstitutional actions of its deputies, but only where the municipality is
“found to have itself caused the constitutional violation at issue[.]” Skop v. City of

Atlanta, 485 F.3d 1130, 1145 (11th Cir. 2007) (noting “it cannot be found liable on
a vicarious liability theory”). Accordingly, the Court will first examine the issue of
whether a constitutional violation occurred.
A. Count I - Fourth Amendment Excessive Force Claim
Chambliss only places the blow to his head at issue. Excessive force claims
in the context of an arrest are analyzed under the Fourth Amendment’s “objective

reasonableness” standard, which balances the severity of the force used against the
need for the use of force. Graham v. Connor, 490 U.S. 386, 396–97 (1989). Deputy
Harrell asserts the blow constituted a reasonable use of force in the face of
resistance and that in any event, he should be afforded qualified immunity. (Doc.
59, pp. 17–20). Qualified immunity shields government officials from suits for

damages arising from their discretionary authority unless a plaintiff demonstrates
(1) that the official violated a statutory or constitutional right, and (2) that the right
was clearly established at the time of the alleged conduct such that the defendant
had fair notice that their conduct was actionable. Ashcroft v. al-Kidd, 563 U.S. 731,
735 (2011); Crocker v. Beatty, 995 F.3d 1232, 1240 (11th Cir. 2021).9
Force used by a sheriff’s deputy in effecting an arrest complies with the

Fourth Amendment when an objectively reasonable deputy confronted with the
same circumstances would find that the force used is not excessive. Graham, 490
U.S. at 397. Importantly, it “must be judged on a case-by-case basis from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.” Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993)

(subsequent history omitted); Vaughan v. Cox, 343 F.3d 1323, 1331 (11th Cir.
2003) (“We are loath to second-guess the decisions made by police officers in the
field.”). In measuring whether the use of force was reasonable, a court must
consider myriad factors, including (1) the need for the force, (2) the proportionality
of the force used in relation to its need, (3) the extent of the injury inflicted on the
arrestee, and (4) whether the force was applied maliciously or sadistically. See

Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008); Vinyard v. Wilson, 311
F.3d 1340, 1347 (11th Cir. 2002). Courts evaluate “the severity of the crime at issue,
whether the suspect posed an immediate threat, and whether the suspect actively
resisted arrest” as part of the consideration. Graham, 490 U.S. at 396.

9 The parties do not dispute that Deputy Harrell acted within his discretionary authority. Courts
“have discretion to decide which of the two prongs of the qualified[] immunity analysis to
tackle first,” and the government officials are “entitled to qualified immunity if the plaintiff
fails to establish either one.” al-Kidd, 563 U.S. at 735; Jacoby v. Baldwin County, 835 F.3d
1338, 1343–44 (11th Cir. 2016). The Court here will first address whether Deputy Harrell
violated Chambliss’s Fourth Amendment right to be free from excessive force before turning
to whether Chambliss’s rights were clearly established at the time of the events in question.
The Supreme Court 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.” Id. The Eleventh Circuit has

similarly embraced the notion that “some use of force by a police officer when
making a custodial arrest is necessary and altogether lawful, regardless of the
severity of the offense.” Durruthy v. Pastor, 351 F.3d 1080, 1094 (11th Cir. 2003).
Likewise, de minimis force is not actionable under § 1983. See Vinyard, 311 F.3d
at 1348 n.13. Those principles notwithstanding, the Eleventh Circuit has made

clear that deputies may not use substantial force to apprehend a nonthreatening
suspect who has committed only a minor offense and is not resisting arrest.
Johnson v. White, 725 F. App’x 868, 876 (11th Cir. 2018); Fils, 647 F.3d at 1292;
Hadley, 526 F.3d at 1330 (“Our cases hold that gratuitous use of force when a
criminal suspect is not resisting arrest constitutes excessive force.”).
Turning to the factors, Deputy Harrell detained Chambliss for marijuana

possession, a minor misdemeanor. (Doc. 47, 33:20–24). The arrest occurred in
broad daylight in a parking lot in a high-crime area. (Id. 31:21–24; Doc. 46, p. 142).
Though Chambliss ignored Deputy Harrell’s initial calls to get his attention, he did
not run from the deputy and eventually acknowledged him. (Doc. 46, 34:8–14). By
all accounts, Chambliss had been cooperative and compliant up until the deputy

started to reach into his pockets. After that, Chambliss contends he “wiggl[ed]” or
“squirmed” away from the deputy’s hand resulting in Deputy Harrell taking him to
the ground and striking the back of his head with his prosthetic arm, whereas
Deputy Harrell claims Chambliss tried to flee and then turned to fight him first,
ignoring multiple verbal commands and reaching for his waistline from which, the
deputy worried, he might be trying to retrieve a weapon.

With Plaintiff’s best case in hand, an objectively reasonable deputy would
not find Chambliss’s actions rose to a consequential level of resistance or posed an
immediate threat sufficient to justify delivering a blow to the back of his head.
According to Chambliss’s version of events, his “wiggling” did not interfere with
Deputy Harrell’s control over his person. The deputy was able to send him to the

ground right after. (Id. 47:8–20; Doc. 55). Before Chambliss “wiggl[ed],” Deputy
Harrell had not informed him that the search was not a consensual ordeal. (Doc.
46, 43:8–15, 45:8–13). Chambliss had cooperated and made no threatening moves
toward the deputy. He was not struggling with Deputy Harrell as he was brought
to the ground. (Id. 56:1–12). In effect, there was no issue of compliance that an
objectively reasonable deputy would believe called for a blow to the back of the

head to resolve. Baltimore v. City of Albany, 183 F. App’x 891, 898 (11th Cir. 2006)
(finding a single violent blow to the head of a minor-crime suspect with a flashlight
was excessive even though he had shown resistance).10 After delivering the blow,
Deputy Harrell did not hasten to secure Chambliss’s hands or seem concerned that

10 Though Baltimore is an unpublished opinion and therefore not binding, this Court finds its
analysis of markedly similar facts, weighing the need for force against the amount used, to be
persuasive. See McNamara v. Gov’t Emps. Ins. Co., 30 F.4th 1055, 1061 (11th Cir. 2022)
(admonishing a district court for citing an unpublished opinion as the basis for its decision
“without separately determining that it is persuasive”). Specifically, the Baltimore court
deemed a blow to the head with a blunt instrument poses a “substantial risk of serious bodily
injury” that qualifies as deadly force, which was excessive to use against a suspect of an open-
container violation even when he had shown nonviolent resistance. 183 F. App’x at 898.
he would continue to show resistance. (Doc. 55). Viewed in the light most favorable
to the plaintiff, these facts establish Chambliss as a nonthreatening suspect of a
minor offense who was not resisting arrest when Deputy Harrell struck him.

Even still, Defendants contend that a single blow to the back of the head
constitutes de minimis force. (Doc. 59, pp.17–19). In the Eleventh Circuit, force is
de minimis when the actual amount of force used, even if unnecessary, and the
injuries sustained are both minor—like skin abrasions from too-tight handcuffs or
treatment for knee pain after a kick between the legs. Jones v. City of Dothan, 121

F.3d 1456, 1460–61 (11th Cir. 1997); Gold v. City of Miami, 121 F.3d 1442, 1446–
47 (11th Cir. 1997); see also Nolin v. Isbell, 207 F.3d 1253, 1258 (11th Cir. 2000)
(finding that getting kneed in the back was de minimis). Here, Chambliss claims
the blow to the back of his head loosened some of his teeth, which later fell out,
and he suffered headaches following the encounter. (Doc. 46, 49:5–50:19, 63:7–
15; Doc. 58, ¶ 27). A single blow to the back of the head hard enough to loosen

teeth—delivered with a prosthetic made of metal—constitutes a substantial
amount of force, particularly when the suspect is not resisting. See Baltimore, 183
F. App’x at 898 (a single blow to a suspect’s head with a blunt instrument was
excessive); Hadley, 526 F.3d at 1330 (a single blow to the stomach was excessive
where the suspect “was not struggling or resisting”); Vinyard, 311 F.3d at 1347–48

(pepper-spraying a handcuffed suspect’s eyes was excessive). Defendants’
argument is not well-taken.
Admittedly, “wiggling” or “squirming” during a search would call for some
force to maintain control of the suspect. But one instance of that conduct—where

the deputy’s control of the suspect is not in jeopardy—does not make a blow to the
back of the head in response clearly lawful to an objectively reasonable deputy. See
Baltimore, 183 F. App’x at 898; Smith v. Mattox, 127 F.3d 1416, 1420 (11th Cir.
1997) (finding a blow that broke “a previously fractious” suspect’s arm was
excessive where arrestee had ceased all resistance); cf. Mercado v. City of Orlando,

407 F.3d 1152, 1157 (11th Cir. 2005) (finding pellets fired at the head excessive
when suicidal subject did not comply with an order to drop his knife within fifteen
seconds). A reasonable jury could find Deputy Harrell used excessive force based
on Chambliss’s version of events viewed in the light most favorable to him.
Accordingly, there is a genuine issue of material fact precluding summary
judgment on whether a constitutional violation occurred.

Considering the version of events before the Court, Chambliss’s right was
also clearly established. In the Eleventh Circuit, a right can be clearly established
in one of three ways. Crocker, 995 F.3d at 1240. Plaintiffs must point to either (1)
“case law with indistinguishable facts” at the time of arrest, (2) “a broad statement
of principle within the Constitution, statute, or case law,” or (3) “conduct so

egregious that a constitutional right was clearly violated, even in the total absence
of case law.” Id. (quoting Lewis v. City of West Palm Beach, 561 F.3d 1288, 1291–
92 (11th Cir. 2009)). As to the first method, only decisions of the United States
Supreme Court, the Eleventh Circuit, or the highest court in a state can “clearly
establish” the law. Id. However, the case law does not need to be “materially
similar” to the deputy’s conduct—rather, it need only provide the law enforcement

officer with “fair warning.” Hope v. Pelzer, 536 U.S. 730, 741 (2002). Even so, the
Supreme Court has warned not to “define clearly established law at a high level of
generality.” Plumhoff v. Rickard, 572 U.S. 765, 779 (2014) (internal quotation
marks omitted).
Chambliss has established, by his account, that he was a nonviolent suspect

of a minor crime who was not resisting arrest. As of March 2019, more than a
decade’s worth of Eleventh Circuit precedent had clearly established that using
substantial force against a nonviolent suspect, accused of only a minor crime and
who is not actively resisting arrest, violates the constitution. Fils, 647 F.3d at 1292;
Hadley, 526 F.3d at 1330; Vinyard, 311 F.3d at 1348; Priester v. City of Riviera
Beach, 208 F.3d 919 (11th Cir. 2000); Smith, 127 F.3d at 1420; see also Johnson,

725 F. App’x at 876; Baltimore, 183 F. App’x at 898. This can include instances of
substantial force used against a suspect who previously resisted without violence
but had unequivocally stopped doing so. See Smith, 127 F.3d at 1420; cf. Mercado,
407 F.3d at 1157. Deputy Harrell said himself that he “would never strike a suspect
that is not being violent.” (Doc. 47, 20:17–18). From this precedent, he would have

fair warning that striking the head of a nonviolent suspect of marijuana
possession—who never left his control and was not resisting—right after dropping
him to the ground would constitute excessive force.
Alas, this is not to say that Deputy Harrell will ultimately be denied qualified
immunity at a later stage. See Smith, 127 F.3d at 1420. Active resistance like the
kind Deputy Harrell described in his deposition would undoubtedly change the

Court’s calculus. If a jury, for example through special interrogatories, indicates
that it believes Deputy Harrell’s testimony that Chambliss actively resisted, it will
be appropriate for the Court to revisit the issue of qualified immunity. Id.
Ultimately, however, this case must go to a jury—since the Court may not evaluate
the credibility of evidence on summary judgment. Johnson v. Breeden, 280 F.3d

1308, 1317 (11th Cir. 2002) (holding if there are facts inconsistent with granting
qualified immunity at summary judgment, then “the case and the qualified
immunity issue along with it will proceed to trial”). Defendants’ Motion as to Count
I is therefore denied.
B. Counts III & IV - Monell Claims
When the defendant is a local government entity or municipality, the

plaintiff can establish § 1983 liability by showing that the defendant acted
“pursuant to [an] official municipal policy of some nature.” Monell v. Dep’t of Soc.
Servs. of the City of New York, 436 U.S. 658, 691 (1978). Municipal policy can
come in different forms. The most commonly found example is the enforcement of
an officially endorsed policy such as an ordinance, rule, regulation, code, or

policymaker decision. See, e.g., id. at 694–95; City of St. Louis v. Praprotnik, 485
U.S. 112, 123 (1988) (plurality opinion). But less-than-formal policies and practices
may also subject a municipality to liability when they are so well-settled,
permanent, pervasive, and wide-spread that they “take[] on the force of the law.”
McDowell v. Brown, 392 F.3d 1283, 1290 (11th Cir. 2004) (internal quotation
marks omitted).

For example, “a municipality’s failure to correct the constitutionally
offensive actions of its employees can rise to the level of a custom or policy ‘if the
municipality tacitly authorizes these actions or displays deliberate indifference’
towards the misconduct.” Griffin v. City of Opa-Locka, 261 F.3d 1295, 1308 (11th
Cir. 2001) (quoting Brooks v. Scheib, 813 F.2d 1191, 1193 (11th Cir. 1987)).

Additionally, “a local government’s decision not to train certain employees about
their legal duty to avoid violating citizens’ rights may rise to the level of an official
government policy[.]” Connick v. Thompson, 563 U.S. 51, 61 (2011) (noting a
municipality’s culpability “is at its most tenuous where a claim turns on a failure
to train”).
Ultimately, a municipality will only be held responsible “for those

deprivations resulting from the decisions of its duly constituted legislative body or
of those officials whose acts may fairly be said to be those of the municipality.” Bd.
of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 403–04 (1997). A
municipality does not incur § 1983 liability for injuries caused solely by its
employees. Monell, 436 U.S. at 694. A municipality will further not be liable under

§ 1983 for random acts, isolated incidents, or customs or practices of which its
policymakers were unaware. Depew v. City of St. Marys, 787 F.2d 1496, 1499 (11th
Cir. 1986). Therefore, although a custom need not receive formal approval, the
plaintiff must show actual or constructive knowledge of the custom by a
policymaking body. Id.
Sheriff Ivey, as the duly elected leader of the Brevard County Sheriff’s Office

(“BCSO”), is a county officer who may be sued in his official capacity under § 1983
for municipal liability. See Ortega v. Schramm, 922 F.2d 684, 694 (11th Cir. 1991)
(citing Hufford v. Rodgers, 912 F.2d 1338, 1342 (11th Cir. 1990)). Chambliss brings
two Monell claims against him in his official capacity alleging a failure to train
deputies (Count III) and ratification of Deputy Harrell’s unconstitutional conduct

(Count IV). But he does not provide evidence that a policy of excessive force against
arrestees permeates BCSO—let alone that Sheriff Ivey knew about it. (Doc. 60, pp.
14–15).
First, Chambliss provides no evidence that any BCSO employee used
excessive force to make an arrest other than Deputy Harrell.11 “A pattern of similar
constitutional violations by untrained employees is ordinarily necessary” to prove

a failure to train claim. Connick, 563 U.S. at 62 (internal quotation omitted). A
municipality can be liable for a single incident only where “the need for more or
different training is so obvious, and the inadequacy [in training is] so likely to
result in the violation of constitutional rights, that the policymakers . . . can
reasonably be said to have been deliberately indifferent.” City of Canton v. Harris,

11 In his response to Defendants’ Motion, Chambliss references allegations made in the
Amended Complaint in support of his claim. (Doc. 60, p. 14). But a party resisting summary
judgment must “go beyond the pleadings” and provide some evidentiary support to meet their
burden. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
489 U.S. 378, 390 (1989). Municipal liability cannot derive from an “isolated
incident[]” and without evidence of other incidents of excessive force, Chambliss
cannot prove the incident at hand is anything other than isolated. See Depew, 787

F.2d at 1499; Holloway v. City of Orlando, No. 15-CV-129-ORL-40-GJK, 2016 WL
4369958, at *7 (M.D. Fla. Aug. 16, 2016). Chambliss references Deputy Harrell’s
testimony that BCSO teaches deputies to use one level of force greater than the
type of resistance a deputy is confronting. (Doc. 47, 27:14–21). But he provides no
basis to believe that this policy, as recalled by Deputy Harrell, would obviously

produce unconstitutional excessive force against arrestees.
Second, no reasonable jury could find from the record that Deputy Harrell
has a pattern of using excessive force in making arrests to which BCSO turned a
blind eye. In cases involving multiple misbehaving employees, the Eleventh Circuit
has required evidence of a substantial number of constitutional violations that
policymakers ignored to find a municipality ratified the conduct. Compare Griffin,

261 F.3d at 1308–09 (affirming liability when wide-spread sexual harassment
permeated city hall that policymakers ignored and tolerated), with Brooks, 813
F.2d at 1193 (denying liability where city investigated all other police misconduct
complaints and found them to lack merit). Assuming a single municipal employee’s
actions could form the basis of a ratification claim, a plaintiff would still need to

prove an employee like Deputy Harrell committed a substantial number of
constitutional violations of the kind this case concerns, which policymakers knew
or should have known about and ignored. See Brooks, 813 F.2d at 1193.
But Chambliss produces no evidence that Deputy Harrell has used excessive
force other than during his arrest. Further, BCSO investigated the complaint of

excessive force internally and, crediting Deputy Harrell’s testimony, found it
unsubstantiated. (Doc. 46, pp. 274–291). Chambliss references two previous BCSO
policy violations in Deputy Harrell’s personnel file—where he received discipline
first for using his department-issued rifle to shoot at an alligator that he thought
was attacking his personal dog, and second for tossing marijuana (recovered

during a traffic stop of teens) into a gas station trash can rather than taking it in
for destruction—but those infractions are entirely irrelevant to unconstitutional
excessive force. (Doc. 47, pp. 22–25). A single constitutional violation of the kind
described in this case committed by a single employee, which the sheriff’s office
investigated internally and found unsubstantiated, cannot suffice to establish
municipal liability. See Brooks, 813 F.2d at 1193; Depew, 787 F.2d at 1499.

Defendants’ Motion will be granted as to Counts III & IV.
C. State-law Claims
Having disposed of the only federal claims against Sheriff Ivey, the Court
declines to exercise supplemental jurisdiction over the state-law claims involving
him. See 28 U.S.C. § 1367(c)(3) (district court may decline to exercise

supplemental jurisdiction when claims giving rise to original jurisdiction have
been dismissed). Accordingly, Chambliss’s negligent retention claim (Count V) and
Sheriff Ivey’s counterclaim will be dismissed without prejudice.
Thus, the Court is only left with the battery claim against Deputy Harrell.
Deputy Harrell argues that he is entitled to summary judgment because Florida’s

sovereign immunity statute shields sheriff’s deputies from personal liability in tort
for injuries or damages they cause while acting within the scope of their
employment. See FLA. STAT. § 768.28(9)(a). Like qualified immunity under federal
law, when individual immunity under § 768.28(9)(a) attaches, the deputy is
protected not just from liability, but from being sued for state tort claims. Furtado

v. Yun Chung Law, 51 So. 3d 1269, 1277 (Fla. 4th DCA 2011). But this immunity
from suit will not attach and a deputy may face personal liability for injuries and
damages he causes where he “act[s] in bad faith or with malicious purpose or in a
manner exhibiting wanton and willful disregard of human rights, safety, or
property.” FLA. STAT. § 768.28(9)(a). Florida’s Fifth District Court of Appeal
explained “wanton and willful” conduct in the following way:

Willful and wanton conduct is generally something more
than ordinary negligence but less than deliberate
conduct. Most definitions of willful or wanton conduct
require that it appear that the defendant had knowledge
of existing conditions, was conscious from such
knowledge that injury would likely or probably result
from his conduct, and with reckless indifference to the
consequences consciously and intentionally does some
wrongful act or omits to discharge some duty which
produces the injurious result.
Lemay v. Kondrk, 923 So. 2d 1188, 1192 (Fla. 5th DCA 2006) (citation omitted).
Here, a reasonable jury could find that Deputy Harrell delivered the blow to
the back of Chambliss’s head with willful and wanton disregard for his rights.
Record evidence does not rule out Chambliss’s version of events, in which he only
wiggled during what, to him, was a consent search and then got struck across the
back of his head immediately after Deputy Harrell dropped him to the ground.
Deputy Harrell said that he would not strike a nonviolent suspect (Doc. 47, p.
20:17-18), from which a jury could infer, based on Chambliss’s version, that the
deputy was conscious that striking him would result in injury to his rights. Deputy
Harrell therefore cannot establish that he must be afforded statutory immunity on
summary judgment.
IV. CONCLUSION
For the aforementioned reasons, it is ORDERED AND ADJUDGED that
Defendants’ Motion for Summary Judgment (Doc. 59) is GRANTED IN PART
and DENIED IN PART as follows:
1. Summary judgment is GRANTED as to Counts III & IV.
2. Summary judgment is DENIED as to Counts I & II.
3. Count V and Sheriff Ivey’s counterclaim for incarceration costs (Doc.
22, pp. 10-11) are DISMISSED WITHOUT PREJUDICE.
DONE AND ORDERED in Orlando, Florida on August 17, 2023.

/ □□ / s
PAUL G.
UNITED STATES*DISTRICT JUDGE

Copies furnished to:

Counsel of Record
Unrepresented Parties

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10113689. Public record. Not legal advice.