Rizk v. Seminole County Sheriff

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

YOUSRY RIZK,

Plaintiff,

v. Case No: 6:18-cv-1414-PGB-RMN

AKEBO PUGH, JOHNNY JEAN,

ANGEL ORTIZ, BIJU

VARGHESE, DENNIS M.

LEMMA and SEMINOLE

COUNTY, FLORIDA,

Defendants.

/

ORDER

This cause comes before the Court on Defendants Johnny Jean, Dennis M.

Lemma, Angel Ortiz, Akebo Pugh, Biju Varghese, and Seminole County, Florida’s

(collectively, the “Defendants”) Motion for Summary Judgment (Doc. 219),

Plaintiff Yousry Rizk’s (“Plaintiff”) response in opposition (Doc. 225), and

Defendants’ reply thereto (Doc. 226). Upon consideration, Defendants’ Motion for

Summary Judgment is due to be denied.

I. BACKGROUND

This case stems from Plaintiff’s interaction with law enforcement and staff

at the Seminole County Jail following his arrest. (Docs. 170, 216). At the time of

the incident, Plaintiff was a 69-year-old retired schoolteacher, standing five-feet,

five inches tall and weighing approximately 165-170 pounds. (Doc. 219-21, 7:21–

22, 10:12–11:10). Plaintiff is a naturalized U.S. citizen of Egyptian origin and has

difficulty communicating and understanding English. (See, e.g., id. 8:7–9:17,

16:15–23, 21:12–17, 34:12–15, 78:23–79:12; Docs. 219-4, 224).

The story dates back to January 18, 2018, when Plaintiff was arrested for

misdemeanor charges of battery and resisting an officer without violence following

an altercation with the director of Plaintiff’s homeowner’s association. (Doc. 216,

¶ 1). Plaintiff was transported to the Seminole County Jail (the “Jail”), a

correctional facility for Defendant Seminole County, by Police Officer Ryan

McIntosh (“Officer McIntosh”). (Id. ¶ 2). The Jail is overseen and operated by

Defendant Sheriff Dennis M. Lemma (“Sheriff Lemma”), the Sheriff of Seminole

County.1

Upon arrival at the Jail, Plaintiff exited the transport vehicle, and Officer

McIntosh informed Plaintiff that they were “going to the door over there,” pointing

in the respective door’s direction. (Doc. 216, ¶ 3). Plaintiff started to walk in the

direction of the door but then, began walking in a direction away from it. (Id. ¶ 4)

Officer McIntosh reminded Plaintiff of the direction of the door in which they were

going in, although Plaintiff continued walking in the wrong direction. (Id. ¶ 5).

Ultimately, Plaintiff complied and walked to the door alongside Officer McIntosh.

1 Bodyworn camera footage captured Plaintiff’s arrest, transport to Jail, and initial screening.

(Docs. 219-4, 224). However, upon review, the Court puts little weight on the relevance of the

footage considering it captured events prior to the use of force incident and thus, does not

reveal what occurred in the ADA Room nor does it shed any light on the severity of the incident

in question. The video merely confirms Plaintiff made some troublesome remarks, expressed

verbal frustration with the underlying situation that led to his arrest, and was less forthcoming

with his answers to screening questions. (Docs. 219-4, 224).

(Id. ¶ 5). Upon entrance, a Jail deputy asked Officer McIntosh if Plaintiff was

resisting, to which Officer McIntosh replied, “In the Sallyport.” (Id. ¶ 6).2 Plaintiff

was also asked various initial screening questions, including whether or not

Plaintiff was injured or hurt. (Id. ¶¶ 7–8). Plaintiff responded, “Me? . . . I am hurt,

yes.” (Id. ¶ 8). Overall, however, Plaintiff was not fully cooperative in answering

the deputies’ intake questions. (Id. ¶ 9; Doc. 219-5, ¶ 4; Doc. 219-18, 16:20–17:25).

In the conversation, Plaintiff stated he takes blood pressure medication and

needed to see a doctor. (Doc. 216, ¶ 10).

Shortly thereafter, Deputies Akebo Pugh (“Deputy Pugh”) and Johnny

Jean (“Deputy Jean”) escorted Plaintiff to a designated changing area in the Jail

known as the ADA Room, where Deputy Angel Ortiz (“Deputy Ortiz”) joined

them. (Id. ¶ 12; Doc. 219-18, p. 84). Upon entry into the Jail, inmates are required

to take off all outside clothing and change into the jail uniform provided. (Doc. 219-

18, 8:17–9:3). The Jail had two designated rooms for inmates to change: an

interview room dedicated to changing and a larger ADA holding cell (the “ADA

Room”), notably for inmates “being particularly difficult.” (Id. 9:4–10:10, 22:15–

17). The latter ADA Room, to which Plaintiff was taken, had no camera. (Id. 39:17–

2 With regard to Plaintiff’s “resistance” in the Sallyport—which was prior to the use of force

incident—review of the bodyworn camera footage makes it questionable if Plaintiff even knew

which door Officer McIntosh was referring to when he said “we are going to that door over

there.” (See Docs. 219-4, 224). The video depicts a number of doors on opposite ends of the

Sallyport, and Officer McIntosh seems to have been behind Plaintiff when he was pointing in

the direction in which he wanted Plaintiff to walk. (See Docs. 219-4, 224). The Court merely

points this out to highlight the magnitude, or lack thereof, of Plaintiff’s “resistance” following

arrest.

19; Doc. 219-21, 89:7–12).3 The parties’ accounts of what happened next differ

drastically. While it is undisputed that a use of force incident occurred while

Plaintiff and Deputies Pugh, Jean, and Ortiz were in the ADA Room (Doc. 216, ¶

14), the specifics remain the crux of this case.

A. Inside the ADA Room (Defendants’ Account)

Defendants’ versions of the events that unfolded in the ADA Room seem to

align for the most part.

Defendants attest that Plaintiff’s “uncooperative” behavior likely led

Deputies Pugh, Jean, and Ortiz to escort Plaintiff to the ADA room “for security

reasons.” (Doc. 219-5, ¶ 4; Doc. 219-9, ¶¶ 3–4; see Doc. 219-18, 16:19–18:8 (“I don’t

know if either [the other changing] room was already occupied . . . . I would

imagine we probably would have taken him to the [ADA room] anyway, just

because the ADA holding cell was a more secure location.”)).

Once inside, Plaintiff was pat searched, and his handcuffs were removed.

(Doc. 219-5, ¶ 5; Doc. 219-9, ¶ 5; Doc. 219-18, 23:3–24:9, p. 82). Plaintiff was then

“ordered several times to remove his clothing so that he could change into a jail

uniform” but “refused, and continued being loud and argumentative.” (Doc. 219-

9, ¶ 5; see Doc. 219-5, ¶ 5; Doc. 219-18, 41:8–12). Plaintiff ultimately “began to take

[his] clothing off, and then he threw it at [the Deputies].” (Doc. 219-9, ¶ 6; see Doc.

3 At one point, Defendants insist there was a video that captured Plaintiff leaving the ADA

Room following the use of force incident—which would assist the Court in evaluating his

condition and thus, possibly shed light on the severity of the incident—but the Jail no longer

has a record of such video. (Doc. 216, ¶ 31). Therefore, it has no bearing on this Court’s decision

considering Plaintiff’s far different account of what happened and his resulting injuries.

219-5, ¶ 6; Doc. 219-18, 41:8–42:25). Deputy Pugh testifies Plaintiff seemed to

have an “issue with taking off his underwear.” (Doc. 219-18, 19:3–5, 42:12–16).

Deputy Pugh contends that the Deputies reminded him the changing process was

a part of procedure, but Plaintiff continued to throw clothes at them. (Id. 19:6–

20:5; Doc. 219-9, 7:22–8:2). No clothes actually hit the Deputies, as a Deputy was

able to intercept any articles of clothing thrown. (Doc. 219-18, 24:10–16; Doc. 219-

9, 7:22–8:2).4 Deputy Pugh testified Plaintiff “was doing a lot of flailing of his arms

and stuff like that” but made no “specific overt action towards” the Deputies that

he could recall. (Doc. 219-18, 28:10–15; see Doc. 219-5, ¶ 7; Doc. 219-9, ¶ 6).

Shortly thereafter, Deputies Pugh and Jean each grabbed one of Plaintiff’s

arms—to which Deputy Jean testifies “[Plaintiff] pulled away”—and “redirected”

him to the floor “slowly.”5 (Doc. 219-5, ¶ 7; Doc. 219-9, ¶ 6; Doc. 219-18, 33:1–

4 Deputy Pugh claims Plaintiff threw his underwear at another Deputy’s face, but Deputy Pugh

intercepted it. (Doc. 219-18, 19:6–20:5, 24:10–16). However, Deputy Ortiz does not recall any

underwear. (Doc. 219-9, 20:23–21:1). In any event, Deputy Ortiz testified that Plaintiff threw

his shirt at Deputy Ortiz, and while Deputy Ortiz caught it, such conduct soon prompted

Plaintiff’s “redirection” to the floor. (Id. 7:22–8:2).

5 There are some inconsistencies surrounding why the Deputies felt the need to “get physical

control of [Plaintiff].” (Doc. 219-18, 27:2–28:3). Deputy Pugh testified that he “believed”

Plaintiff’s underwear was the last garment Plaintiff took off, prior to the Deputies restraining

him. (Id. 27:1–22, 38:2–6). Deputy Pugh states that “at that point . . . the determination was

made to move in and secure [Plaintiff] so that he could not throw any – you know, throw

anything additional or that, you know, he could – to gain compliance of him at that point.”

(Id. 27:7–11). Deputy Pugh then clarified that he wasn’t actually sure if Plaintiff was fully

naked when the Deputies “moved in” on Plaintiff to “secure him”—he could have possibly “had

his shirt still on.” (Id. 27:2–22). The Court finds such uncertainty perplexing. If Plaintiff was

in fact naked, he had nothing on his person to throw and thus, the reason Deputy Pugh felt

the need to restrain Plaintiff did not necessarily exist. Nevertheless, Deputies Ortiz and Jean

testify that it was not until Plaintiff was on the floor that all “remaining clothing was removed.”

(Doc. 219-5, ¶¶ 7–8; Doc. 219-9, ¶ 7). The Court only highlights this point of uncertainty

because it implicates why the Deputies felt the need to restrain Plaintiff in the manner in

which they did in the first place and the reasonableness of their response. Moreover, it

34:14, p. 83). Once Plaintiff was on the floor “in the prone position,” Deputies Pugh

and Jean remained control over Plaintiff’s arms and Deputy Ortiz “took control of

[Plaintiff’s] legs.” (Doc. 219-18, 36:17–23; see Doc. 219-5, ¶¶ 7–8; Doc. 219-9, ¶¶

6–7). Deputies Ortiz and Jean testify that the Deputies then removed Plaintiff’s

remaining clothing, but Deputy Pugh does not recall if Plaintiff was naked at this

point or still had clothes that needed to be removed. (Doc. 219-5, ¶ 8; Doc. 219-9,

¶ 7; Doc. 219-18, 27:2–28:3). Deputy Pugh attests Plaintiff was “[b]racing, tensing,

moving around, trying to get out of – trying to get free of our control.” (Doc. 219-

18, 37:11–12; see Doc. 219-5, ¶ 7). “Once [Plaintiff] got to a point to where he wasn’t

actively trying to get free of us, [the Deputies] were able to actually start moving

out of the cell.” (Doc. 219-18, 37:15–17). Although Deputy Pugh could not recall,

Deputies Jean and Ortiz testified that “[none of the Deputies] put a knee on

Plaintiff or struck him in any manner.” (Doc. 219-9, ¶ 7; see Doc. 219-5, ¶ 8; Doc.

219-18, 39:6–10). According to the Deputies’ reports after the incident, the

estimated time in which the restraint took place was five minutes. (Doc. 219-18,

pp. 92–94).

B. Inside the ADA Room (Plaintiff’s Account)

Plaintiff, on the other hand, presents a far different—and much more

concerning—narrative of what occurred in the ADA room. Plaintiff testifies that

without explanation, Deputy Pugh ordered Plaintiff to strip down and change into

represents as an example of one of the many inconsistencies in the record—not just with

regard to Plaintiff’s account.

a jail uniform. (Doc. 219-21, 86:5–87:12, 98:3–12). Plaintiff “take[s] [his first] shirt

off” and then, “some of [the deputies] take it from [him].” (Id. 99:18–100:9).

Plaintiff’s second shirt, Plaintiff admittedly takes off and “throw[s] it on the floor,”

near where Deputy Pugh was located. (Id. 100:17–101:3). At that point, Deputy

Pugh “place[d] himself in position to attack . . . tak[ing] [Plaintiff’s] arm,

squeez[ing] it” to the point he fell down to the concrete floor. (Id. 91:9–11). Deputy

Pugh then “dragged [Plaintiff] . . . like a ragged dog. With no—any kind of human

being feeling.” (Id. 92:3–5, 99:14–17).

Deputy Pugh, who Plaintiff states was much larger than him at 400 pounds,

was so angry that he “choked me [and] put his legs in my belly,” leading Plaintiff

to fracture his ribs, urinate himself, and suffer a litany of other health problems.

(Id. 91:12–13, 94:8–15, 107:18–112:9; see Doc. 216, ¶ 28). Plaintiff “become [sic]

in a coma, [he] could not see.” (Doc. 219-21, 91:13–16, 99:17). Plaintiff attests he

was choked, and lost consciousness, twice and “fe[lt] that I’m going to die. . . . with

severe pain and the suffering.” (Id. 91:23–92:5, 107:18–112:9). And yet, Plaintiff

felt “[Deputy Pugh] enjoy[ed] it” because after the Deputies had stripped Plaintiff

of his remaining clothes and left him naked in the ADA room, Plaintiff heard “[a]ll

of them . . . laughing.” (Id. 96:21–98:2).

C. Medical Assistance Following Incident

After the use of force incident, Plaintiff was booked into the Jail at 10:16 a.m.

(Doc. 216, ¶ 15). Considering the prior response to resistance, medical staff

attended to Plaintiff to assess his condition. (Doc. 219-5, ¶ 9; Doc. 219-9, ¶ 8; Doc.

219-18, 61:8–12). Defendant Biju Varghese (“Nurse Varghese”) had been

notified that Plaintiff was complaining of chest pain, but once Nurse Varghese saw

him, he attests that Plaintiff was “uncooperative” and “screaming mad because

[Defendant Varghese was] a nurse, [and] not qualified to see him.” (Doc. 219-22,

22:23–24, 27:6–7, 28:20). Although Nurse Varghese does not recall Plaintiff

himself “complaining of chest pain at all,” (Doc. 219-22, 33:3–6), Plaintiff testifies

that he told Nurse Varghese he was in severe pain, specifically that he thought his

ribs were broken. (Doc. 219-21, 122:9–24). However, the only injury Nurse

Varghese could ascertain was a “minor cut” on Plaintiff’s wrist. (Doc. 219-22,

32:17–20, 33:10–34:1; see Doc. 216, ¶ 18).

Shortly thereafter, at 10:52 a.m., Plaintiff’s pain intensified and he requested

to be seen again. (Doc. 216, ¶ 18; Doc. 219-21, 126:10–11). Plaintiff told Nurse

Varghese his right arm was broken, but Nurse Varghese charted that there was “no

swelling” and Plaintiff was uncooperative and “would not allow . . . for an

assessment.” (Doc. 216, ¶ 18; Doc. 219-8, pp. 7–8). Plaintiff, on the other hand,

states he was “fully cooperating.” (Doc. 219-21, 127:25–128:5). Later in the day,

Plaintiff requested to be seen for a third time, and Nurse Varghese charted that

Plaintiff again “complained of possible chest pain” and body aches on his right side.

(Doc. 219-8, p. 8; Doc. 216, ¶ 19). However, Nurse Varghese simply charted

Plaintiff’s vitals. (Doc. 219-8, p. 8; Doc. 216, ¶ 19).

Records indicate that around 6:19 p.m., Plaintiff saw another Nurse, Nurse

Holland, because he was still experiencing pain. (Doc. 216, ¶ 21; Doc. 219-21,

129:15–23). Although Plaintiff told Nurse Holland he had pain in his ribs that was

“moving to my chest,” Nurse Holland again charted his vitals, along with the

observation that he saw no bruising or swelling, and offered Plaintiff pain medicine

that he indicated he could not take. (Doc. 216, ¶ 21; Doc. 219-8, p. 4; Doc. 219-21,

129:24–132:8).

In sum, although Plaintiff complained of severe pain and requested

assistance—specifically, a doctor and to go to the hospital—numerous times while

he was at the Jail, no X-rays were taken, and no doctor examined him. (Doc. 216,

¶¶ 23–24; Doc. 219-21, 130:11–131:4; Doc. 219-22, 23:2–24:3, 27:23–25).

Eventually, Plaintiff was booked out of the jail around 2:44 a.m., roughly sixteen

hours after his arrival. (Doc. 216, ¶ 26). Immediately upon his release, Plaintiff

requested an ambulance pick him up from the Jail and take him to the hospital.

(Id. ¶ 27). There, his diagnosis included rib fractures, acute kidney injury,

rhabdomyolysis, hyperkalemia, elevated creatine kinase, hypertensive chronic

kidney disease, gout, gastritis, elevated white blood cell count, and gastro-

esophageal reflux disease. (Id. ¶ 28).

D. The Lawsuit Begins

Ultimately, on August 28, 2018, Plaintiff initiated the instant lawsuit. (Doc.

1). Following years of litigation and various judicial rulings, Defendants filed the

operative Fourth Amended Complaint on September 2, 2022, asserting the

following causes of action: excessive force against Deputy Pugh in his individual

capacity pursuant to §1983 (Count I); failure to intervene against Deputies Jean

and Ortiz in their individual capacities pursuant to §1983 (Count II); deliberate

indifference to serious medical needs against Nurse Varghese in his individual

capacity pursuant to §1983 (Count III); battery under Florida law against Deputy

Pugh in his individual capacity, Sheriff Lemma in his official capacity, and

Seminole County (Count IV); and intentional infliction of emotional distress under

Florida law against Deputies Pugh, Jean, and Ortiz in their individual capacities

(Count V). (Doc. 170). Defendants moved for summary judgment on all counts on

the basis of either qualified immunity, statutory immunity under Florida Statute §

768.28(9)(a), or the factual record before the Court. (Doc. 219). Plaintiff responded

in opposition (Doc. 225), and Defendants replied thereto (Doc. 226). Accordingly,

the matter is now ripe for review.6

II. STANDARD OF REVIEW

A court may only “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

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

6 The Court notes that it has extensively laid out the dueling versions of how the subject

encounter played out, largely to indicate the clear presence of a genuine dispute of material

fact. Every cause of action is predicated on the severity of the incident in dispute and

consequently, credibility determinations that the Court cannot resolve.

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).7

“The burden then shifts to the non-moving party, who 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

need consider only the cited materials” when resolving a motion for summary

judgment. FED. R. CIV. P. 56(c)(3); see also HRCC, LTD v. Hard Rock Café Int’l

(USA), Inc., 703 F. App’x 814, 816–17 (11th Cir. 2017) (per curiam) (holding that a

district court does not err by limiting its review to the evidence cited by the parties

in their summary judgment briefs).8

An issue of fact is “genuine” only if “a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). In determining whether a genuine dispute of material fact exists, the Court

must read the evidence and draw all factual inferences therefrom in the light most

favorable to the non-moving party and must resolve any reasonable doubts in the

non-movant’s favor. Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir. 2007).

7 “The Court notes that it is not the responsibility of the court to search the record to determine

whether a motion for summary judgment should be granted or to find reasons why a properly

supported motion should be denied.” Kaazar Cap. Partners Ltd. v. Bactrac Techs., LLC, No.

17-CV-2721-AT, 2019 WL 2147578, at *8 n.12 (N.D. Ga. Mar. 14, 2019); see, e.g., Impreglon,

Inc. v. Newco Enters., Inc., 508 F. Supp. 2d 1222, 1241 n.16 (N.D. Ga. 2007) (“[I]t is not the

Court’s duty to comb the record in an attempt to find reasons to grant [a] Motion for Summary

Judgment.”); Tomasini v. Mount Sinai Med. Ctr. of Fla., Inc., 315 F. Supp. 2d 1252, 1260 n.11

(S.D. Fla. 2004).

8 “Unpublished opinions are not controlling authority and are persuasive only insofar as their

legal analysis warrants.” Bonilla v. Baker Concrete Constr., Inc., 487 F.3d 1340, 1345 (11th

Cir. 2007).

However, “[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.” Brooks v. Cty. Comm’n of Jefferson Cty., 446 F.3d 1160, 1162

(11th Cir. 2006) (quoting Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990)).

Ultimately, summary judgment should only be granted “[w]here the record taken

as a whole could not lead a rational trier of fact to find for the non-moving party.”

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

III. DISCUSSION

In sum, Defendants argue that they are entitled to summary judgment on

each count of the Fourth Amended Complaint. (Doc. 219). Specifically, Nurse

Varghese and Deputies Pugh, Jean, and Ortiz argue that summary judgment must

be granted on Counts I, II, and III because they acted in their discretionary capacity

as government officials and are protected by qualified immunity. (Id. at pp. 12–

22). Deputy Pugh, Sheriff Lemma, and Seminole County argue that summary

judgment must be granted on Count IV because they have immunity under Florida

Statute § 768.28(9)(a). (Id. at pp. 22–23). And, Deputies Pugh, Jean, and Ortiz

argue that summary judgment must be granted on Count V because they have

immunity under Florida Statute § 768.28(9)(a). (Id. at pp. 24–25). The Court

addresses each challenged cause of action in turn. Ultimately, the Court concludes

that summary judgment must be denied on all counts.

A. Qualified Immunity

Defendant Nurse Varghese and Deputies Pugh, Jean, and Ortiz move for

summary judgment as to Counts I, II, and III on the grounds that they are entitled

to qualified immunity from Plaintiff’s § 1983 excessive force, failure to intervene,

and deliberate indifference claims. (Doc. 219).

Qualified immunity protects government officials performing discretionary

functions “from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); e.g., Jacoby

v. Baldwin County, 835 F.3d 1338, 1343–44 (11th Cir. 2016) (quoting Foy v.

Holston, 94 F.3d 1528, 1532 (11th Cir. 1996)).

If a government official can demonstrate he or she was acting within the

scope of their discretionary authority, then the burden shifts to the plaintiff to

demonstrate that qualified immunity is inappropriate by affirmatively putting

forward evidence that establishes the government official violated their rights and

by showing that those rights were clearly established at the time of the misconduct.

Jacoby, 835 F.3d at 1344; see Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)

(“Qualified immunity shields federal and state officials from money damages

unless a plaintiff pleads facts showing (1) that the official violated a statutory or

constitutional right, and (2) that the right was ‘clearly established’ at the time of

the challenged conduct.”); Crocker v. Beatty, 995 F.3d 1232, 1240 (11th Cir. 2021).9

Courts have discretion to decide the order in which to engage these two prongs,”

but they may not, under either prong, “resolve genuine disputes of fact in favor of

the party seeking summary judgment. Tolan v. Cotton, 572 U.S. 650, 655–56

(2014). “If, at the summary judgment stage, the evidence construed in the light

most favorable to the plaintiff shows that there are facts inconsistent with granting

qualified immunity, then the case and the qualified immunity defense proceed to

trial.” Stryker v. City of Homewood, 978 F.3d 769, 773 (11th Cir. 2020)

First, the parties do not appear to dispute that Defendants were acting

within their discretionary authority for purposes of qualified immunity. (See Doc.

225, p. 19).10 As such, the burden shifts to Plaintiff to demonstrate Defendants are

not entitled to summary judgment on qualified immunity grounds. To do so,

Plaintiff must prove that a reasonable jury could interpret the factual record to

show that Defendants violated a constitutional right that was clearly established at

the time of the acts in question. A plaintiff can establish a constitutional right in

one of three ways: (1) showing case law by an appropriate court with materially

similar facts clearly establishing the constitutional right; (2) showing that a clearly

established broad principle should control the facts of Plaintiff’s case; or (3)

9 With regard to the state law claims, officers are entitled to statutory immunity when acting

within the course and scope of their employment with respect to the alleged excessive use of

force. See City of Maitland v. Heatwole, 546 So. 2d 63, 64 (Fla. 1st DCA 1989); FLA. STAT. §

768.28(9)(a); infra Section III.B.

10 Accordingly, the Court will not address the merits of this initial requirement.

showing conduct that is so egregious that a constitutional right was clearly

violated, and prior case law is unnecessary. Davis v. Waller, 44 F.4th 305, 1312–

13 (11th Cir. 2022); Richmond v. Badia, 47 F.4th 1171, 1183–84 (11th Cir. 2022).

1. Count I - Excessive Force (Deputy Pugh)

In Count I, Plaintiff argues that Deputy Pugh violated Plaintiff’s Fourteenth

Amendment Due Process rights by using objectively unreasonable and excessive

force against Plaintiff. (Doc. 170, ¶¶ 80–97). Defendant Deputy Pugh moves for

summary judgment on Plaintiff’s excessive force claim, arguing that he did not

violate a clearly established constitutional right and thus, is at least entitled to

qualified immunity. (Doc. 219, pp. 12–14).

A Fourteenth Amendment excessive force claim requires, first, that a law

enforcement officer purposely or knowingly use force against a pretrial detainee

and, second, that the application of force be done in a way that is objectively

unreasonable, without regard to an officer’s subjective intent to harm. Watkins v.

Pinnock, 802 F. App’x 450, 461 (11th Cir. 2020) (citing Piazza v. Jefferson County,

923 F.3d 947, 952 (11th Cir. 2019)). Whether the use of force is objectively

unreasonable is determined using the particular facts and circumstances of each

case, and the court must make this determination based on the perspective of a

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

incident, not with the court’s benefit of hindsight. Kingsley v. Hendrickson, 576

U.S. 389, 396–97 (2015) (citing Graham v. Connor, 490 U.S. 386, 396 (1989)).

Considerations to help determine objective reasonableness include, but are

not limited to: 1) “the need to use force to preserve internal order and maintain

institutional security;” 2) the relationship between the need for the use of force and

the amount of force used; 3) the extent of the plaintiff’s injury which resulted from

the use of force; 4) “any effort made by the officer to temper or limit the amount of

force used;” 5) “the severity of the security problem at issue” and “the threat

reasonably perceived by the officer;” and 6) “whether the plaintiff was actively

resisting.” Id.; Graham, 490 U.S. at 396. Moreover, once the need for an

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

violation of the Fourteenth Amendment. Williams v. Burton, 943 F.2d 1572, 1576

(11th Cir. 1991); see Piazza, 923 F.3d at 953.

Simply put—as the Court has extensively detailed herein—the record reveals

sharply dueling accounts of the use of force incident that transpired in the ADA

room. Essentially, Deputy Pugh argues he is entitled to summary judgment on

Plaintiff’s excessive force claim because he “utilized the least amount of force to

gain control of Plaintiff, by directing him to the floor with the assistance of two

other deputies.” (Doc. 219, p. 14). Deputy Pugh further contends, albeit without

reason, that Plaintiff’s allegations that Deputy “Pugh choked him and used his leg

to cause him injuries” are “so unreasonable that no jury would believe his story.”

(Id. at p. 14).

Therein, however, lies the problem. Accepting such an argument would

directly result in the Court patently disregarding Plaintiff’s account of what

occurred in the ADA room, which has yet to be contradicted by evidence in the

record.11 With Plaintiff’s best case in hand, Plaintiff—confused, embarrassed, and

already pat searched—was forced to strip naked in front of Deputies Pugh, Jean,

and Ortiz. Upset, Plaintiff admittedly threw his shirt on the floor near the location

of a deputy, to which Deputy Pugh reacted by taking Plaintiff to the ground,

choking him, fracturing his ribs, and causing him to urinate himself. (Doc. 219-21,

91:12–13, 94:8–15; see Doc. 216, ¶ 28).12 Deputy Pugh himself testified that

Plaintiff—a 69-year-old man half Deputy Pugh’s size—made no “specific overt

action towards” the Deputies that he could recall. (Doc. 219-18, 28:10–15; see Doc.

219-5, ¶ 7; Doc. 219-9, ¶ 6). At most, surrounded by three deputies and already pat

searched for contraband, Plaintiff threw his shirt to the ground—in agitation he

had to strip naked—and Deputy Pugh perceived him to flail his arms.

Considering Plaintiff’s version of the facts, which the Court must accept as

true, an objectively reasonable deputy would not have found Plaintiff’s actions rose

to a consequential level of resistance or posed an immediate threat sufficient to

11 “[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.” Sears v. Roberts, 922 F.3d 1199, 1208 (11th Cir. 2019). Plaintiff’s

testimony simply does not fall into any of the aforementioned categories. Although

Defendants attempt to argue Plaintiff’s testimony is inconsistent, the reality is that so is

Defendants—in fact, even the Deputies’ versions of the incident differ to some extent. For

example, see supra notes 4–5.

12 The Court highlights that Plaintiff requested an ambulance pick him up from the Jail and take

him to the hospital immediately after he was released. (Doc. 216, ¶ 27). There, his diagnosis

included a litany of ailments, such as rib fractures and elevated levels of creatine kinase. (Id.

¶ 28). Notably, Defendants do not point to anything in the record that would suggest that

Plaintiff’s aforementioned diagnosis was a result of something other than the use of force

incident.

justify choking and squeezing Plaintiff to the point of unconsciousness, fractured

ribs, and urination. At most, Plaintiff—who had already undergone a pat search—

threw his shirt in frustration with being forced to strip naked and verbally

expressed his dissatisfaction with the situation. (See, e.g., Doc. 219-18, 23:3–24:9,

p. 82; Doc. 219-21, 86:5–87:12, 98:3–12; 100:17–101:3). As such, Plaintiff

presented a negligible threat to begin with. Plaintiff never made any “overt action

towards” the Deputies, and nothing in the record insinuates Plaintiff “actively

resisted” or was combative in any other way. (Doc. 219-18, 28:10–15; see Doc. 219-

5, ¶ 7; Doc. 219-9, ¶ 6).13 In fact, Deputy Ortiz testified he felt Plaintiff posed no

serious threat of danger. (Doc. 219-17, 16:7–15). Thus, the severity of a security

threat, and any corresponding risk to the officers, was exceedingly minimal, if

present at all.

In any event, the ADA Room itself was small and confined, Plaintiff had no

access to weapons or anything dangerous of the sort, and he was considerably older

and much smaller than the three other Deputies surrounding him in the room. (See

Doc. 219-6, pp. 6, 10–13). Thus, considering the facts in the light most favorable to

Plaintiff, it is hard to believe a deputy would reasonably perceive that the

circumstances discussed herein threatened their safety or institutional security,

13 The Court highlights that when considering the circumstances in the light most favorable to

Plaintiff, it is somewhat dissonant to conclude Plaintiff was “actively resisting”—Plaintiff, who

was originally instructed to undress, testifies he “threw” his shirt off on the floor near the

Deputies. (Doc. 219-21, 100:17–101:3). While Defendants contend he was simply

uncooperative, Plaintiff suggests he was confused and upset that he had to strip naked in front

of three other men.

much less warranted the extent of Deputy Pugh’s force. Further, there is no

indication in the record that Deputy Pugh made an effort to temper or limit the

amount of force he used over the estimated five minutes in which the restraint took

place. Not to mention, Plaintiff attests he lost consciousness and was choked twice,

which only further suggests Deputy Pugh did not attempt to temper the amount of

force he used. (Doc. 219-21, 107:18–109:11).

Assuming force was even necessary to regain control of Plaintiff, the amount

of force employed here greatly exceeded that necessary to maintain order and

security. In fact, the Chief of Corrections for the Seminole County Sheriff’s Office,

Laura Bedard, testified that once Plaintiff “was laying on the floor in a prone

position and no longer resisting, a choke would not be justified” and would

constitute excessive force. (Doc. 219-11, 54:7–19). Moreover, Captain Howard

testified that choking in any situation that is not a Level 6, where the officer’s life

is in danger or jeopardy—which was not the case here—would be considered

excessive. (Doc. 219-13, 54:18–56:19). Not only was the force used excessive but

also the resulting injuries were severe. Accordingly, a reasonable jury could find

Deputy Pugh used excessive force when considering the factual record in the light

most favorable to Plaintiff. As such, there is a genuine issue of material fact

precluding summary judgment on whether a constitutional violation occurred.

Even assuming the force is deemed excessive, to overcome Deputy Pugh’s

qualified immunity defense, Plaintiff must further demonstrate that the

unlawfulness of Deputy Pugh’s conduct was “clearly established” at the time of the

alleged incident. E.g., Pearson v. Callahan, 555 U.S. 223 (2009). The law must be

clear enough that it provided the officer “fair warning” his conduct was

unconstitutional. E.g., Glasscox v. City of Argo, 903 F.3d 1207, 1218 (11th Cir.

2018). However, the “‘rule requiring particularized case law to establish clearly the

law in excessive force cases’ has ‘[a] narrow exception,’” deemed the “obvious

clarity rule.” Priester v. City of Riviera Beach, 208 F.3d 919, 926 (11th Cir. 2000);

Oliver v. Fiorino, 586 F.3d 898, 907 (11th Cir. 2009). The rule provides that “an

excessive-force plaintiff can overcome qualified immunity only by showing that the

official’s conduct lies so obviously at the very core of what the Fourth Amendment

prohibits that the unlawfulness of the conduct was readily apparent to the official,

notwithstanding the lack of caselaw” on point. Glasscox, 903 F.3d at 1218 (Smith

v. Mattox, 127 F.3d 1416, 1419 (11th Cir. 1997)). “This test entails determining

whether application of the excessive force standard would inevitably lead every

reasonable officer in the Defendants’ position to conclude the force was unlawful.”

Priester, 208 F.3d at 926–27.

First, Deputy Pugh was on notice that his actions were unconstitutional

based on settled case law. As Plaintiff points out, it has long been established that

an officer’s use of force after a detainee is no longer resisting or is only minimally

resisting violates clearly established constitutional rights. See, e.g., Skritch v.

Thornton, 280 F.3d 1295, 1304–05 (11th Cir. 2002); Lee v. Ferraro, 284 F.3d 1188,

1197–2000 (11th Cir. 2002) (“[T]he force used by [defendant] after effecting

[plaintiff’s] arrest was unnecessary and disproportionate.”); Mercado v. City of

Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005); Slicker v. Jackson, 215 F.3d 1225,

1227 (1th Cir. 2000).

In any event, assuming a jury accepts Plaintiff’s testimony, Deputy Pugh’s

conduct was so obviously egregious that prior case law establishing such excessive

force is unnecessary. Glasscox, 903 F.3d at 1218. Accepting the evidence in the

light most favorable to Plaintiff, any reasonable officer in Deputy Pugh’s position

would conclude that given the circumstances, choking Plaintiff to the point of

unconsciousness, fractured ribs, and urination was unlawful.

Ultimately, since the Court cannot evaluate the credibility of evidence on

summary judgment, the only crystal-clear result that the factual record points to is

that the determination of what actually happened in the ADA room is for the jury,

not this Court. See 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”); Wate v. Kubler, 839 F.3d 1012, 1018 (11th Cir. 2016)

(“[Courts] do not weigh conflicting evidence or make credibility determinations;

the non-movant’s evidence is to be accepted for purposes of summary judgment.”);

Stryker v. City of Homewood, 978 F.3d 769, 777 (11th Cir. 2020) (“Very little is

clear about exactly what happened . . . . The officers articulate a version of events

that justifies their [said] use of force. [Plaintiff] tells a story that presents a clear

constitutional violation. Resolving that dispute is for a trial, not summary

judgment.”). As such, at this stage, the Court cannot resolve qualified immunity

with regard to the excessive force claim against Deputy Pugh, and summary

judgment is denied. See Glasscox, 903 F.3d at 1219–20.

2. Count II – Failure to Intervene (Deputies Jean and Ortiz)

Plaintiff further asserts that both Deputy Jean and Deputy Ortiz failed to

intervene to stop the excessive use of force. (Doc. 170, ¶¶ 98–114). Deputies Jean

and Ortiz argue that they are entitled to summary judgment on Plaintiff’s failure

to intervene claim because Deputy Pugh did not use excessive force, and even if he

did, Deputies Jean and Ortiz did not have the ability to intervene. (Doc. 219, pp.

14–16). In opposition, Plaintiff contends that Deputy Jean and Ortiz’s argument

that there was no excessive force fails for the same reason as Deputy Pugh’s. (Doc.

225, pp. 11–13).

An officer can be liable for failing to intervene when another officer uses

excessive force. See Priester, 208 F.3d at 927; Ireland v. Prummell, 53 F.4th 1274,

1301 (11th Cir. 2022). “This liability, however, only arises when the officer is in a

position to intervene and fails to do so.” Priester, 208 F.3d at 925; see Hadley v.

Guiterrez, 526 F.3d 1324, 1330–31 (11th Cir. 2008).

Viewing the record in the light most favorable to Plaintiff, the Court has

already determined that Plaintiff has introduced sufficient evidence to support a

reasonable jury finding that Deputy Pugh used excessive force. See supra Section

III.A.1. Therefore, the Court must now ascertain if Deputies Jean and Ortiz had the

ability to intervene.

As previously indicated, after Deputies Pugh and Jean took Plaintiff to the

floor, Deputy Jean maintained control over Plaintiff’s arms and Deputy Ortiz “took

control of [Plaintiff’s] legs” while Deputy Pugh choked Plaintiff. (Doc. 219-18,

36:17–23; see Doc. 219-5, ¶¶ 7–8; Doc. 219-9, ¶¶ 6–7; Doc. 219-21, 91:12–13, 94:8–

15, 107:18–112:9). According to the Deputies’ reports following the incident, the

estimated time in which the restraint took place was five minutes. (Doc. 219-18,

pp. 92–94). There was no other inmate in the room, and all attention was clearly

on Plaintiff during the encounter. (See Doc. 219-14, 18:12–14, 22:19–23:15; Doc.

219-17, 13:4–10). As such, a reasonable jury could find that Deputies Jean and

Ortiz had ample time and opportunity to intervene to protect Plaintiff, but chose

not to. See Howard v. Wilkinson, 305 F. Supp. 3d 1327, 1341 (noting that officers

have time to intervene even when the “events happen[] very quickly” (quotation

omitted)); Priester, 208 F.3d at 925 (finding two minutes was enough time for

officers to intervene). In fact, Deputy Jean admitted that if Deputy Pugh acted in

the manner Plaintiff testifies he did, Deputies Jean and Ortiz would have

“absolutely” had the ability to intervene. (Doc. 219-14, 40:23–41:7). Thus,

considering the disputed issues of material fact as to what occurred in the ADA

room, the issue of whether or not Deputies Jean and Ortiz failed to intervene must

go to the jury.

With regard to qualified immunity, an officer’s duty to intervene upon

witnessing the use of excessive force and having the ability to intervene has been

clearly established since long before 2018 when the subject incident occurred. See

Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986); Priester, 208 F.3d at 924–25.

Moreover, the Court agrees with Plaintiff that no particularized case law is

necessary for a reasonable officer to know, given the circumstances of this case,

that he should intervene if his fellow officer is choking a detainee to the point of

unconsciousness. See Priester, 208 F.3d at 927–28; (Doc. 225, pp. 12–13).

Therefore, Deputies Jean and Ortiz are not entitled to qualified immunity at this

juncture, and summary judgment is denied.

3. Count III – Deliberate Indifference (Nurse Varghese)

Plaintiff also brings a § 1983 claim against Nurse Varghese for deliberate

indifference to a serious medical need. (Doc. 170, ¶¶ 115–27). However, Nurse

Varghese argues he is entitled to summary judgment and qualified immunity on

this claim. (Doc. 219, pp. 16–22).

Deliberate indifference to a pretrial detainee’s serious medical needs

constitutes a Fourteenth Amendment violation. Estelle v. Gamble, 429 U.S. 97, 104

(1976); Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cty., 402 F.3d 1092, 1115

(11th Cir. 2005). To prevail on a deliberate-indifference claim, Plaintiff must show:

“(1) a serious medical need; (2) deliberate indifference to that need; and (3)

causation between that indifference and the plaintiff’s injury.” See Mann v. Taser

Int’l, Inc., 588 F.3d 1291, 1306–07 (11th Cir. 2009).

On the first prong, a serious medical need is “one that has been diagnosed

by a physician as mandating treatment or one that is so obvious that even a lay

person would easily recognize the necessity for a doctor’s attention.” Id. (quoting

Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994)).

Alternatively, a medical need is serious where the delay in treatment “worsens the

condition.” Id. “In either case, ‘the medical need must be one that, if left

unattended, poses a substantial risk of serious harm.’” Id. (quoting Farrow v.

West, 320 F.3d 1235, 1243 (11th Cir. 2003)).

Inadvertent failures to furnish necessary medical treatment fall short of

generating constitutional claims. The second prong therefore requires Plaintiff to

establish: “(1) subjective knowledge of a risk of serious harm; (2) disregard of that

risk; and (3) conduct that is more than mere negligence.” Brown v. Johnson, 387

F.3d 1344, 1351 (11th Cir. 2004). Not that a defendant must know the precise

nature of a detainee’s injuries and ignore them to expose him or herself to liability.

M.D. by Stukenberg v. Abbott, 907 F.3d 237, 252 (5th Cir. 2018) (concluding that

courts do not require state officials to be warned of a “specific danger” to be held

liable for deliberate indifference to a serious medical need). “Liability can attach

even if a prison official knows only that, if no action is taken, the detainee faces a

‘substantial risk of serious harm.’” Taylor v. Hughes, 910 F.3d 729, 734 (11th Cir.

2019).

A jail official “disregards a serious risk by more than mere negligence ‘when

he [or she] knows that an inmate is in serious need of medical care, but he [or she]

fails or refuses to obtain medical treatment for the inmate.’” Dang ex rel. Dang v.

Sheriff, Seminole Cty. Fla., 871 F.3d 1272, 1280 (11th Cir. 2017) (quoting Lancaster

v. Monroe County, 116 F.3d 1419, 1425 (11th Cir. 1997)). A “delay in medical

treatment must be interpreted in the context of the seriousness of the medical

need, deciding whether the delay worsened the medical condition, and considering

the reason for delay.” Hill, 40 F.3d at 1189. “A few hours’ delay” in treating major

injuries, like “broken bones [or] bleeding cuts may constitute deliberate

indifference.” Harris v. Coweta County, 21 F.3d 388, 394 (11th Cir. 1994).

A deliberate indifference claim may be predicated on “a showing of grossly

inadequate care [or] a decision to take an easier but less efficacious course of

treatment.” McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999). Likewise,

“medical care which is so cursory as to amount to no treatment at all may amount

to deliberate indifference.” Dang, 871 F.3d at 1280 (quoting Mandel v. Doe, 888

F.2d 783, 789 (11th Cir. 1989)).

With regard to the first prong—the objectively serious medical need—it is

undisputed that Plaintiff suffered fractured ribs. (Doc. 216, ¶ 26). As such, Plaintiff

satisfies his burden in demonstrating that his injuries constitute an objectively

serious medical need. See Sherman v. Quest, No. 18-60973-CIV, 2020 WL

6791100, at *24 (S.D. Fla. Nov. 19, 2020) (“The Court here assumes that two

fractured ribs constitute an objectively serious medical condition.”); Minnis v.

GEO Corp., No. 17-20575-CV, 2019 WL 5926898, at *8 (S.D. Fla. Oct. 9, 2019),

report and recommendation adopted, No. 17-CV-20575, 2019 WL 5887369 (S.D.

Fla. Nov. 12, 2019) (“A reasonable juror could conclude that Plaintiff’s injuries are

an objectively serious medical need. It is undisputed that Plaintiff had

nondisplaced anterior left sixth and seventh right rib fractures.”).

Thus, Nurse Varghese argues that prong two has not been established,

specifically that Plaintiff has failed to demonstrate that Nurse Varghese had

subjective knowledge of Plaintiff’s injuries or of any risk of serious harm, much less

that he recklessly disregarded such risk. (Doc. 219, pp. 19–21). Alas, the Court

disagrees. Considering the facts in Plaintiff’s favor, a reasonable jury could find

that Nurse Varghese—having interacted and “assessed” Plaintiff following the use

of force incident—had subjective knowledge of a risk of serious harm and

disregarded that risk by conduct that is more than mere negligence. See Brown,

387 F.3d at 1344, 1351; see also McElligott v. Foley, 182 F.3d 1248, 1256–58 (11th

Cir. 1999) (finding viable deliberate-indifference claims against jail-employed

doctor and nurse who, despite receiving pain complaints from detainee, failed to

pursue “further diagnosis of and treatment for the severe pain [the plaintiff] was

experiencing”).

First, Nurse Varghese emphasizes that he had no subjective knowledge of

Plaintiff’s “serious medical needs” because aside from a minor cut on Plaintiff’s

wrist, none of his injuries were visible. (Doc. 219, pp. 19–21). However, this

argument seems to blatantly ignore the fact that Plaintiff explicitly told Nurse

Varghese numerous times—from the very first time they interacted—that he had

“severe pain” and thought his ribs were broken. (Doc. 219-21, 121:7–123:19). In

fact, the very reason Nurse Varghese testifies he initially responded to the incident

was because Plaintiff complained of chest pain. (Doc. 219-22, 22:23–25:14).

Nevertheless, Nurse Varghese charted a minor cut on Plaintiff’s wrist, leaving

Plaintiff without further evaluation. (Doc. 216, ¶ 17).

A bit later, still in pain, Plaintiff requested to be seen again. (See id. ¶ 18;

Doc. 219-21, 126:10–11). Plaintiff told Nurse Varghese, “I need to go to the hospital

because my ribs is [sic] broken.” (Doc. 219-21, 123:15–20). Plaintiff further

identified to Nurse Varghese that he had kidney problems and thought he “had a

broken right arm.” (Doc. 219-21, 123:15–124:8; Doc. 216, ¶ 18). Nurse Varghese

was already aware Plaintiff took blood pressure medication. (Doc. 216, ¶ 17).

However, Nurse Varghese charted that there was “no swelling” and Plaintiff was

uncooperative.” (Doc. 216, ¶ 18; Doc. 219-8, pp. 7–8). Plaintiff, on the other hand,

states he was “fully cooperating.” (Doc. 219-21, 127:25–128:5). Again, Plaintiff was

left with a cursory assessment of his condition.

A third time, Plaintiff called for medical attention, and Nurse Varghese

responded. (Id. ¶ 19; Doc. 219-22, 62:13–66:10). During that encounter, Plaintiff

complained of body pain, chest pain, and aching. (Doc. 216, ¶ 19; Doc. 219-22,

62:13–65:6). Alas, Nurse Varghese simply took Plaintiff’s blood pressure, pulse,

and respirations. (Doc. 216, ¶ 19; Doc. 219-22, 65:7–24). Plaintiff was still

experiencing pain in his ribs that was “moving to my chest,” and later, saw Nurse

Holland. (Doc. 216, ¶ 21; Doc. 219-8, p. 4; Doc. 219-21, 129:24–132:8). Upon

release from the Jail, Plaintiff immediately called for an ambulance and was

ultimately diagnosed with one of the very ailments he complained of to Nurse

Varghese. (Doc. 216, ¶ 28).

Simply put, the reality is that based on Plaintiff’s version of events, Nurse

Varghese made a cursory attempt at best to examine Plaintiff’s condition. See

Dang, 871 F.3d at 1280; Mandel, 888 F.2d at 789. No doctor was called—although

Plaintiff begged for one multiple times, specifically complaining of broken ribs—

no x-rays were taken, and emergency services were not requested, even though

such action was warranted. (See Doc. 216, ¶¶ 23–24; Doc. 219-22, 23:2–24:3,

27:23–25, 72:1–73:19, 75:24–7:18 (Nurse Varghese responding “Yes” when being

asked “If you had known [Plaintiff] fractured two ribs, would you have had him

seen by a doctor or gotten an X-ray of some sort?”)). Everyone “ignore[d]

[Plaintiff’s] crying for pain,” and he was simply offered ibuprofen—a medicine he

could not even take. (Doc. 219-21, 145:5–11; Doc. 219-22, 55:24–56:3, 111:23–

112:8). Ultimately, roughly sixteen hours following the use of force incident,

Plaintiff was released and immediately called an ambulance from the Jail to

transport him to the hospital where he was diagnosed with, among other things,

rib fractures, acute kidney injury, rhabdomyolysis, hyperkalemia, elevated creatine

kinase, hypertensive chronic kidney disease, and an elevated white blood cell

count. (Doc. 216, ¶ 28). As such, considering the facts in the light most favorable

to Plaintiff, there is ultimately sufficient evidence in the record that would permit

a jury to infer that Nurse Varghese acted with deliberate indifference to Plaintiff’s

serious medical needs. See Goebert v. Lee County, 510 F.3d 1312, 1328 (11th Cir.

2007) (“Choosing to deliberately disregard, without any investigation or inquiry,

everything any inmate says amounts to willful blindness.”).

Finally, the evidence supports a reasonable jury finding that Nurse

Varghese’s deliberate indifference caused Plaintiff’s harm. See, e.g., Mann, 588

F.3d at 1306–07. For one, Plaintiff’s ultimate diagnoses and hospitalization, given

the circumstances, establish a jury question as to injury causation. See Patel v.

Lanier County Georgia, 969 F.3d 1173, 1190 (11th Cir. 2020). And, in any event,

Nurse Varghese’s conduct caused a delay of over sixteen hours for Plaintiff to

receive medical attention for serious conditions, which a jury could reasonably find

caused harm. See Goebert, 510 F.3d at 1327 (“Causation, of course, can be shown

by personal participation in the constitutional violation.”); Patel, 969 F.3d at 1190.

With regard to qualified immunity, Nurse Varghese violated a right that was

clearly established, as “a reasonable person would have known” that delaying

treatment of the various conditions discussed herein could “detrimentally

exacerbate the medical problem.” See Valderrama v. Rousseau, 780 F.3d 1108,

1121 (11th Cir. 2015) (“[I]t is ‘clearly established . . . that an official acts with

deliberate indifference when he intentionally delays providing . . . access to medical

treatment, knowing that the [detainee] has a life-threatening condition or an

urgent medical condition that would be exacerbated by delay.”); Harper v.

Lawrence County, 592 F.3d 1227, 1235 (11th Cir. 2010). Moreover, “[t]he

knowledge of the need for medical care and intentional refusal to provide that care

has consistently been held to surpass negligence and constitute deliberate

indifference.” Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 704 (11th Cir.

1985); see Patel, 969 F.3d at 1190. As such, taking Plaintiff’s account of the facts as

true, qualified immunity cannot be applied at this stage, and Plaintiff’s claim for

deliberate indifference against Nurse Varghese survives summary judgment.

B. State Law Claims

Deputy Pugh, Sheriff Lemma, and Seminole County move for summary

judgment on Plaintiff’s state law tort claims, arguing that they are immune from

suit pursuant to Florida Statute § 768.28(9)(a). (Doc. 219, pp. 22–24).

Similar to qualified immunity under federal law, Florida Statute §

768.28(9)(a) provides police officers immunity from personal liability in tort for

injuries or damages they cause while acting within the scope of their

employment.14 FLA. STAT. § 768.28(9)(a). When individual immunity under

§ 768.28(9)(a) attaches, a police officer, employee, or state agent 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). However, an officer may face

personal liability for injuries and damages that he causes, and thus immunity will

not attach, if he “acted 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).

14 Again, the parties do not dispute that Deputy Pugh was acting within the scope of his

employment. See supra p. 14; (see also Doc. 225, p. 19).

1. Count IV – Battery (Deputy Pugh, Sheriff Lemma, and

Seminole County)

Deputy Pugh, Sheriff Lemma, and Seminole County move for summary

judgment on Plaintiff’s claim for battery, arguing immunity from suit pursuant to

Florida Statute § 768.28(9)(a). (Doc. 219, pp. 22–24).

Under Florida law, a battery occurs when a person “actually and

intentionally touches or strikes another person against the will of the other” or

“intentionally causes bodily harm to another person.” Wilson v. Williams, No. 19-

cv-822, 2019 WL 6324265, at *5 (M.D. Fla. Nov. 26, 2019) (citing FLA. STAT. §

784.03). A long-recognized exception is that law enforcement officers carrying out

their lawful duties are ordinarily not liable for battery unless the force applied in

carrying out those duties is excessive. See City of Miami v. Sanders, 672 So. 2d 46,

47 (Fla. 3d DCA 1996) (citing Jennings v. City of Winter Park, 250 So. 2d 900, 902

(Fla. 4th DCA 1971), and RESTATEMENT (SECOND) OF TORTS § 132 cmt. a (AM. L.

INST. 1965)); see also Mazzilli v. Doud, 485 So. 2d 477, 481 (Fla. 3d DCA 1986). “A

battery claim [against a law enforcement officer] for excessive force is analyzed by

focusing upon whether the amount of force used was reasonable under the

circumstances.” Sanders, 672 So. 2d at 47 (citing Dixon v. State, 132 So. 684 (Fla.

1931)).

However, as previously stated, an officer acting within the scope of his

employment is immune from personal liability in tort unless he “acted 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). The term “bad

faith” equates to the actual malice standard. Parker v. State of Fla. Bd. of Regents

ex rel. Fla. State Univ., 724 So. 2d 163, 167 (Fla. 1st DCA 1998). “‘[M]alicious

purpose . . . has been interpreted as meaning the conduct was committed with ‘ill

will, hatred, spite, [or] an evil intent’”—or, as more simply stated, “the subjective

intent to do wrong.” Peterson v. Pollack, 290 So. 3d 102, 109 (Fla. 4th DCA 2020)

(quoting Eiras v. Florida, 239 F. Supp. 3d 1331, 1343, 1345 (M.D. Fla. 2017)).

Lastly, the phrase “wanton and willful” has been defined as the following:

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).

Accepting Plaintiff’s version of the facts, the Court has already concluded

that a reasonable jury could find Deputy Pugh employed excessive force. See supra

Section III.A.1. Here, the Court is also persuaded that a reasonably jury could

conclude that Deputy Pugh acted in bad faith, with malice, or with wanton and

willful disregard of Plaintiff’s rights. As detailed with respect to previous counts,

evidence in the record lends support to Plaintiff’s version of events in which

Plaintiff—already pat searched and not exhibiting any “specific overt action

towards” the Deputies—was ordered to undress, but upon throwing his shirt to the

ground in frustration and/or confusion, was choked to the point of

unconsciousness, fractured ribs, and uncontrolled urination. (Doc. 219-18, 28:10–

15; see, e.g., Doc. 219-5, ¶ 7; Doc. 219-9, ¶ 6; Doc. 216, ¶ 28; Doc. 219-21, 91:12–13,

91:23–92:5, 94:8–15, 107:18–108:14). There are no allegations, beyond Plaintiff’s

agitation, that Plaintiff posed a threat or actively resisted.15 And yet, Plaintiff also

attests that he was at one point “dragged. . . like a ragged dog. With no—any kind

of human being feeling.” (Doc. 219-21, 92:3–5, 99:14–17). In fact, Plaintiff felt

“[Deputy Pugh] enjoy[ed] it” because when the Deputies left the ADA room after

the incident, Plaintiff heard “[a]ll of them . . . laughing.” (Id. 96:21–98:2). As such,

viewing the facts most favorably to Plaintiff, a reasonable trier of fact could

conclude that Deputy Pugh’s conduct was in bad faith, malicious, or with wanton

and willful disregard for Plaintiff’s rights.

On the other hand, a Florida municipality or its subdivisions—here, Sheriff

Lemma and Seminole County—may be “held liable for an employee’s intentional

act(s) as long as the employee is acting within the course and scope of his

employment and the act or omission is not committed in bad faith, with malicious

purpose, or in a manner exhibiting wanton and willful disregard of the plaintiff’s

rights.” City of Boynton Beach v. Weiss, 120 So. 3d 606, 611 (Fla. 4th DCA 2013)

(citing Simpson, 172 So. 2d at 436, and FLA. STAT. § 768.28 (delineating when the

state of Florida has waived sovereign immunity)). As for good faith, “[t]he

15 In fact, when asked if Deputy Ortiz felt Plaintiff “posed a serious threat of danger” to any of

the deputies after Plaintiff threw his shirt, Deputy Ortiz testified, “No.” (Doc. 219-17, 16:7–15).

[municipality] is immune as a matter of law only if the acts are so extreme as to

constitute a clearly unlawful usurpation of authority the [officer] does not

rightfully possess, or if there is not even a pretense of lawful right in the

performance of the acts.” McGhee v. Volusia County, 679 So. 2d 729, 733 (Fla.

1996); see Carestio v. Sch. Bd. of Broward Cnty., 866 So. 2d 754, 756–57 (Fla. 4th

DCA 2004) (concluding that school employees who kicked and punched a student

after removing him from class for disruptive behavior were acting within the scope

of employment, and directing the factfinder to determine whether the employees

were acting in a willful and wanton manner).

As previously indicated, it is undisputed that Deputy Pugh was acting within

the course and scope of his employment. (See Doc. 225, p. 19). Deputy Pugh had

the lawful authority to restrain detainees and respond with force if necessary to

maintain order in a situation. (See Doc. 219-12, p. 137 (“When meeting resistance

to lawful commands, Deputy Sheriffs and Detention Deputies are vested with the

authority to respond accordingly to protect themselves and the public welfare. . . .

[However,] [o]nly that degree of force reasonably necessary to accomplish lawful

objectives . . . is authorized . . . .”)). In any event, the possible purpose of

maintaining order within the jail gives Deputy Pugh’s conduct at least the

“pretense of lawful right.” McGhee, 679 So. 2d at 733 (internal citations omitted).

Ultimately though, even assuming a jury credits Plaintiff’s version of events and

finds Deputy Pugh acted with excessive force, a reasonable jury may not conclude

that he acted in bad faith, with a malicious purpose, or in a manner exhibiting

wanton and willful disregard of Plaintiff’s rights—in which case Sheriff Lemma and

Seminole County could be held vicariously liable for Deputy Pugh’s actions. See id.

(“In any given situation either the agency can be held liable under Florida law, or

the employee, but not both.”).

In sum, considering the conflicting evidence amassed and the fact that

applying statutory immunity “is so closely bound up with [Deputy Pugh’s] mental

state,” the Court finds there is a genuine issue of material fact as to whether Deputy

Pugh acted in bad faith, maliciously, or with wanton and willful disregard for

Plaintiff’s rights. Butler v. Gualtieri, 41 F.4th 1329, 1340 (11th Cir. 2022)

(highlighting that it is not the district court’s role “to wade into the remaining

factual disputes and make determinations regarding the witnesses’ credibility, let

alone draw appropriate inferences from the proffered facts”).16 As such, the Court

cannot resolve immunity at this stage with regard to Deputy Pugh, Sheriff Lemma,

and Seminole County, and thus, summary judgment is due to be denied.

16 In McGhee v. Volusia County, the Supreme Court of Florida explained:

Here, [the deputy] clearly had the lawful authority to restrain

arrestees, detain them, or even respond with force in appropriate

situations. His office gave him that authority, and he therefore

cannot be described as a usurper. The fact that [the deputy] may

have intentionally abused his office does not in itself shield the

sheriff from liability. In sum, the question must be put to the fact-

finder whether [the deputy] acted in bad faith, with malicious

purpose, or in a manner exhibiting wanton or willful disregard of

human rights, safety, or property.

679 So. 2d at 733.

2. Count V – Intentional Infliction of Emotional Distress

(Deputies Pugh, Jean, and Ortiz)

Lastly, Deputies Pugh, Jean, and Ortiz move for summary judgment on

Plaintiff’s claim for intentional infliction of emotional distress, arguing Plaintiff

has failed to establish the requisite elements and, in any event, Defendant Deputies

are immune from suit pursuant to Florida Statute 768.28(9)(a). (Doc. 219, pp. 24–

25).

To state a claim for intentional infliction of emotional distress under Florida

law, the plaintiff must plead: “(1) deliberate or reckless infliction of mental

suffering; (2) by outrageous conduct; (3) which conduct must have caused the

suffering; and (4) the suffering must have been severe.” Hart v. U.S., 894 F.2d

1539, 1548 (11th Cir. 1990) (citing Metro. Life Ins. Co. v. McCarson, 467 So. 2d

277, 278 (Fla. 1985)).

The Florida Supreme Court defines “outrageous conduct” as follows:

It has not been enough that the defendant has acted with an

intent which is tortious or even criminal, or that he has

intended to inflict emotional distress, or even that his conduct

has been characterized by “malice,” or a degree of aggravation

which would entitle the plaintiff to punitive damages for

another tort. Liability has been found only where the conduct

has been so outrageous in character, and so extreme in degree,

as to go beyond all possible bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized

community. Generally, the case is one in which the recitation

of the facts to an average member of the community would

arouse his resentment against the actor, and lead him to

exclaim, “Outrageous!”

Metro. Life Ins. Co., 467 So. 2d at 278–79 (quoting RESTATEMENT (SECOND) OF

TORTS § 46 (1965)). “In applying that standard, the subjective response of the

person who is the target of the actor’s conduct does not control the question of

whether the tort of intentional infliction of emotional distress occurred.” Liberty

Mut. Ins. Co. v. Steadman, 968 So. 2d 592, 594–95 (Fla. 2d DCA 2007). “Rather,

the court must evaluate the conduct as objectively as is possible to determine

whether it is atrocious, and utterly intolerable in a civilized community.” Id. at 595

(internal quotations omitted).

Again, as stated in various iterations herein, upon Plaintiff being ordered to

fully undress and throwing his shirt off in frustration, Deputies Pugh and Jean took

Plaintiff to the ground. (Doc. 219-5, ¶¶ 7–8; Doc. 219-9, ¶¶ 6–7; Doc. 219-21, 86:5–

87:12, 98:3–12, 100:17–101:3). Once down, Deputy Ortiz held Plaintiff’s legs while

Deputies Pugh and Jean kept control of Plaintiff’s arms. (Doc. 219-5, ¶¶ 7–8; Doc.

219-9, ¶¶ 6–7). Then, with the help of Deputies Ortiz and Jean securing Plaintiff

on the floor, Plaintiff testifies that Deputy Pugh choked him to the point he lost

consciousness, fractured his ribs, and urinated himself in front of the other

Deputies. (See Doc. 216, ¶ 28; Doc. 219-5, ¶¶ 7–8; Doc. 219-9, ¶¶ 6–7; Doc. 219-18,

36:17–23; Doc. 219-21, 91:12–13, 94:8–15). Plaintiff was ultimately left naked in

pain on the floor of the ADA cell, listening to the Deputies laughing at him outside

the door. (Doc. 219-21, 96:21–98:14).

If a jury were to accept the aforementioned evidence presented by Plaintiff

as true, a reasonable jury could conclude that the Deputies actions against Plaintiff

were conducted deliberately or recklessly to inflict mental suffering and were

sufficiently outrageous. With regard to statutory immunity, the Court has already

found that a genuine issue of material fact exists as to whether Deputy Pugh acted

in bad faith, maliciously, or with wanton and willful disregard for Plaintiffs rights.

Thus, Deputies Pugh, Jean, and Ortiz are not entitled to immunity at this stage,

and summary judgment must be denied.

IV. CONCLUSION

Accordingly, itis ORDERED AND ADJUDGED that Defendants’ Motion

for Summary Judgment (Doc. 219) is DENIED.

DONE AND ORDERED in Orlando, Florida on January 26, 2024.

/ □□ / s

PAUL G.

UNITED STATES*DISTRICT JUDGE

Copies furnished to:

Counsel of Record

Unrepresented Parties