Roberts v. Burtz

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ORION B. ROBERTS,

Plaintiff,

v. Case No. 8:21-cv-1935-WFJ-CPT

LT. BURTZ, et al.,

Defendants.

/

ORDER

Plaintiff Orion B. Roberts, a convicted and sentenced state prisoner, sues under

42 U.S.C. § 1983. He proceeds on his Second Amended Complaint in which he asserts

claims of excessive force, assault, battery, and failure to intervene against Lt. Burtz,

Officer Peet, and Officer Cloud in their individual capacities.1 (Doc. 14) Defendants

Burtz, Peet, and Cloud move to dismiss (Docs. 32 and 33) the Second Amended

Complaint, and Mr. Roberts responds in opposition (Doc. 37).

I. Second Amended Complaint

Mr. Roberts alleges that he was confined at the Hardee Correctional Institution

when, at approximately 11:30 p.m. on October 29, 2020, a search of his cell was

conducted. (Doc. 14 at 12) During the search, a pat-down was conducted and a knife

1 Prior screening orders (Docs. 10, 13, and 15) dismissed with prejudice Mr. Roberts’s claims

against the defendants in their official capacities and his claim for procedural due process

violations.

fell from his waistband. (Id.) Mr. Roberts picked up the knife and gave it to Officer

Durden. (Id.) Officer Durden “rushed” him, and the two struggled with one another

while the weapon remained in Mr. Roberts’s hand. (Id.) Mr. Roberts dropped the

knife, and Officer Durden pushed him to the wall and placed handcuffs on him. (Id.)

Sergeant Warner became aggressive and spat in his face. (Id.) At that moment,

Mr. Roberts “placed [his] forehead on [Sgt. Warner’s forehead] and pushed with little

force.” (Id.) Officer Durden slammed him to the ground, and Mr. Roberts ceased all

disruptive behavior. (Id.)

Defendants Lt. Burtz, Officer Peet, and Officer Cloud arrived on the scene with

leg irons and placed Mr. Roberts in full body restraints. (Id.) Mr. Roberts was not

being disorderly. (Id.) He was forced to stand up and walk “while the restraints cut

[his] ankles due to the tightness of the leg irons.”

Officer Cloud told him he was “about to be ‘did in’ meaning beaten due to the

fact that [he] assaulted Sgt. Warner who was a female corrections officer.” (Id.)

Officer Cloud wrapped his arms around Mr. Roberts in an aggressive manner and

slammed him to the ground, breaking his right middle finger. (Id.) Next, the

defendants again picked him up and carried him out of the dormitory. (Id.)

Once they were beyond view of the cameras, the defendants dragged, kicked,

and beat Mr. Roberts with extreme force. (Id.) Lt. Burtz ordered Officers Cloud and

Peet to “do [him] in.” (Id.) Mr. Roberts was thrown several feet into the air and

landed on his face in the hard asphalt, injuring his right eyebrow and chin. (Id.) While

he was on the ground, Lt. Burtz ordered Officer Cloud to hold his head in a sideways

position while Officer Peet sprayed him with chemical agents to suffocate him. (Id.)

The defendants then carried Mr. Roberts to a shower where he washed off the chemical

agents. (Id.)

Mr. Roberts was transported to two hospitals where his right finger was sown

back on and where he received nine sutures for the lacerations on his face. (Id.) As a

remedy for his injuries, Mr. Roberts seeks to recover $200,000.00 in compensatory

damages. (Id. at 5)

II. Standard of Review

A pro se complaint is entitled to a generous interpretation. Haines v. Kerner, 404

U.S. 519 (1972). On a motion to dismiss under Rule 12(b)(6), Federal Rules of Civil

Procedure, the Court must view the allegations in the complaint in the light most

favorable to the plaintiff, and consider the allegations in the complaint, including all

reasonable inferences, as true. Omar ex rel. Cannon v. Lindsey, 334 F.3d 1246, 1247

(11th Cir. 2003); Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003).

Even so, the complaint must meet certain pleading requirements. Under Rule

12(b)(6), a complaint that fails to “state a claim upon which relief can be granted” is

subject to dismissal. In reviewing a motion to dismiss, a court considers the complaint,

documents incorporated into the complaint by reference, and matters of which a court

may take judicial notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322-

23 (2007). To withstand a motion to dismiss, the complaint must state a claim to relief

that is plausible on its face; that is, it must contain “factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007)). A pleading that offers only “labels and conclusions” or a

“formulaic recitation of the elements of a cause of action will not do.” Twombly, 550

U.S. at 555.

The “[f]actual allegations must be enough to raise a right to relief above the

speculative level.” Id. “Conclusory allegations, unwarranted factual deductions or

legal conclusions masquerading as facts will not prevent dismissal.” Davila v. Delta Air

Lines, Inc., 326 F.3d 1183, 1185 (11th Cir. 2003). Further, under Rule 8(a)(2), a

complaint must contain “a short and plain statement of the claim showing that the

pleader is entitled to relief.” If the court cannot “infer more than the mere possibility

of misconduct,” the complaint does not show entitlement to relief. Iqbal, 556 U.S. at

679.

III. Analysis

A. Excessive Force and Failure to Intervene

Defendants Burtz, Peet, and Cloud2 argue they are entitled to qualified

immunity because Mr. Roberts “demonstrat[ed] behavior that was dangerous and an

2 As an additional basis for dismissal, Defendant Cloud asserts that “he was not present at the

subject location at the subject time.” (Doc. 32 at 1) However, the Court must consider the

allegations in the Second Amended Complaint, including the allegations that Officer Cloud

participated in the alleged constitutional violations, as true. Therefore, Defendant Cloud’s

asserted absence from the scene is not a proper basis for dismissal at this stage of the

proceedings.

imminent threat to others.”3 (Doc. 32 at 8; Doc. 33 at 7) “Questions of qualified

immunity should be resolved at the earliest possible stage in the litigation. A district

court should therefore grant the defense of qualified immunity on a motion to dismiss

if the complaint fails to allege the violation of a clearly established constitutional

right.” Dalrymple v. Reno, 334 F.3d 991, 994–95 (11th Cir. 2003) (quotations omitted).

For qualified immunity to apply, the defendant must first show that “he was

acting within the scope of his discretionary authority when the allegedly wrongful acts

occurred.” Fish v. Brown, 838 F.3d 1153, 1162 (11th Cir. 2016). Here, the defendants’

alleged actions plainly fall within the scope of their discretionary authority. Once that

is established, the Court engages in a two-step inquiry: (1) whether, taken in the light

most favorable to the plaintiff, the factual allegations show the defendants’ conduct

“violated a constitutional right”; and (2) whether the constitutional right was “clearly

established.” Id.

“Under the Eighth Amendment, force is deemed legitimate in a custodial setting

if it is ‘applied in a good-faith effort to maintain or restore discipline’ and not

‘maliciously and sadistically to cause harm.’” Sears v. Roberts, 922 F.3d 1199, 1205

3 Additionally, the defendants argue that the Second Amended Complaint constitutes an

impermissible shotgun pleading. (Doc. 32 at 3–4; Doc. 33 at 3–4) The Court rejects this

additional ground for dismissal because, as explained in a prior order, the Court screened the

Second Amended Complaint under 28 U.S.C. §§ 1915(e) and 1915A and determined that Mr.

Roberts’s claims of excessive force, assault, battery, and failure to intervene were sufficient to

proceed to service of process. (Doc. 15 at 3–4)

(11th Cir. 2019) (quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)). To determine

whether force was used “maliciously and sadistically,” the Court considers:

(1) The need for the application of force; (2) the relationship

between the need and the amount of force that was used; (3) the

extent of the injury inflicted upon the prisoner; (4) the extent of

the threat to the safety of staff and inmates; and (5) any efforts

made to temper the severity of a forceful response.

Sears, 922 F.3d at 1205 (quotations omitted). The Court “must give a wide range of

deference to prison officials acting to preserve discipline and security, including when

considering decisions made at the scene of a disturbance.” Id. (quotations omitted).

“The focus of [the Court’s] Eighth Amendment inquiry is on the nature of the force

applied, not on the extent of the injury inflicted.” Id. (citation omitted). Relevant to

this case is the principle that “[o]nce a prisoner has stopped resisting there is no longer a

need for force, so the use of force thereafter is disproportionate to the need.” Piazza v.

Jefferson Cnty., 923 F.3d 947, 953 (11th Cir. 2019) (quotations omitted).

Mr. Roberts alleges that he “cease[d] all of [his] disruptive behavior” after

Officer Durden slammed him to the ground. (Doc. 14 at 12) While Mr. Roberts was

still on the ground and in handcuffs, Defendants Lt. Burtz, Officer Peet, and Officer

Cloud arrived on the scene with leg irons. (Id.) According to Mr. Roberts, “while

now being in full body restraints and not being disorderly,” he was forced to walk.

(Id.) Next, Officer Cloud slammed Mr. Roberts to the ground, breaking his finger. (Id.

at 13) While still in restraints, Defendants Burtz, Peet, and Cloud carried Mr. Roberts

to a location out of view of cameras, where they proceeded to drag, kick, and beat him

with extreme force. (Id.) They threw him into the air several feet, causing him to land

on his face on the hard asphalt. (Id.) While Mr. Roberts was on the ground, Lt. Burtz

ordered Officer Cloud to hold his head in a sideways position while Officer Peet

sprayed him with chemical agents to suffocate him. (Id.)

The defendants focus on Mr. Roberts’s conduct before he was restrained with

handcuffs and leg irons. Indeed, Mr. Roberts alleges that this incident began during a

search of his cell when a weapon dropped from his waistband. (Id. at 12) Mr. Roberts

“proceeded to pick the weapon up,” he “struggle[d] with [Officer Durden] while the

weapon was still in [his] hand,” and he “placed his forehead on [Sgt. Warner’s

forehead] and pushed with little force.” (Id.) However, according to Mr. Roberts, he

ceased all disruptive behavior after Officer Durden slammed him to the ground, and

he was “in full body restraints and not being disorderly,” when the defendants

allegedly slammed him to the ground and beat him. (Id. at 12–13)

Accepting as true Mr. Roberts’s allegations that he was restrained and

compliant when Defendants Burtz, Peet, and Cloud arrived on the scene, he has

sufficiently pleaded a violation of his clearly-established right to be free from excessive

force. “[G]ratuitous use of force when a criminal suspect is not resisting . . . constitutes

excessive force.” Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008) (citing Lee

v. Ferraro, 284 F.3d 1188 (11th Cir. 2002)); see also Piazza, 923 F.3d at 953 (“When

jailers continue to use substantial force against a prisoner who has clearly stopped

resisting—whether because he has decided to become compliant, has been subdued,

or he is otherwise incapacitated—that use of force is excessive.”). Furthermore, the

constitutional right to be free from excessive force was clearly established when this

incident occurred. Generally, “[i]n [the Eleventh Circuit] a defense of qualified

immunity is not available in cases alleging excessive force in violation of the Eighth

Amendment, because the use of force ‘maliciously and sadistically to cause harm’ is

clearly established to be a violation of the Constitution.” Skritch v. Thornton, 280 F.3d

1295, 1301 (11th Cir. 2002), overruled on other grounds by Pearson v. Callahan, 555 U.S.

223 (2009) (“By 1998, [Eleventh Circuit] precedent clearly established that

government officials may not use gratuitous force against a prisoner who has been

already subdued[.]”).

Additionally, Mr. Roberts has sufficiently pleaded a failure to intervene claim.

The Court must accept as true his allegations that Defendants Burtz, Peet, and Cloud

together participated in dragging and kicking him, throwing him into the air, and

spraying him with chemical agents, all while he was restrained and compliant.

Caselaw is clear that “an officer who is present at the scene and who fails to take

reasonable steps to protect the victim of another officer’s use of excessive force can be

held personally liable for his nonfeasance.” Sears, 922 F.3d at 1205 (quotation

omitted); Velazquez v. City of Hialeah, 484 F.3d 1340, 1341 (11th Cir. 2007) (same).

Accordingly, at this stage of the litigation, Defendants Burtz, Peet, and Cloud are not

entitled to qualified immunity on the claims of excessive force and failure to intervene.

B. Assault and Battery

Defendants Burtz, Peet, and Cloud move to dismiss Mr. Roberts’s assault and

battery claims, arguing that he “fails to plead an assault or battery cause of action” and

instead “only references his own assault and possession of a weapon.” (Doc. 32 at 10;

Doc. 33 at 9–10) In response, Mr. Roberts repeats allegations from his Second

Amended Complaint, including that the defendants “dragged, kicked and beat[] him .

. . with extreme force” while he was restrained with leg irons. (Doc. 14 at 12–13)

Under Florida law, “a presumption of good faith attaches to an officer’s use of

force . . . and an officer is liable for damages only where the force used is clearly

excessive . . . . A battery claim for excessive force is analyzed by focusing upon whether

the amount of force used was reasonable under the circumstances.” City of Miami v.

Sanders, 672 So. 2d 46, 47 (Fla. 3d DCA 1996) (citations omitted). “Law enforcement

officers are provided a complete defense to an excessive use of force claim where an

officer ‘reasonably believes the force to be necessary to defend himself or another from

bodily harm[.]’” Id. (quoting Fla. Stat. § 776.05(1)). “If an officer uses excessive force,

the ordinarily protected use of force . . . is transformed into a battery.” Davis v.

Williams, 451 F.3d 759, 768 (11th Cir. 2006) (quotations omitted); see also DeJesus v.

Lewis, 14 F.4th 1182, 1195 (11th Cir. 2021) (“Claims of . . . assault have generally been

analyzed under the legal framework for excessive force claims.”)

Having concluded that Mr. Roberts’s excessive force claim is not subject to

dismissal at this stage of the proceedings, for the same reasons, his state law battery

and assault claims may proceed. Sullivan v. City of Pembroke Pines, 161 F. App’x 906,

911 (11th Cir. 2006) (dismissing Florida battery claim on same grounds as § 1983

excessive force claim)

III. Conclusion

Accordingly, it is ORDERED that:

1. The Motions to Dismiss (Docs. 32 and 33) are DENIED.

2. No later than 30 DAYS from the date of this Order, the parties must

submit a joint case management report. M.D. Fla. L. R. 3.02(a).

DONE and ORDERED in Tampa, Florida on January 25, 2024.

WILLIAM F. ca

UNITED STATES DISTRICT JUDGE

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