Bochner v. Martin County

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 2:17-CV-14422-ROSENBERG/REID

NEAL H. BOCHNER,

Plaintiff,

v.

MARTIN COUNTY, et al.,

Defendants.

____________________________/

ORDER ADOPTING MAGISTRATE’S REPORTS AND RECOMMENDATIONS

This matter comes before the Court on Defendants Nurse Donna Lee and Nurse Karen’s

Motion for Summary Judgment [DE 228]; the Motion for Summary Judgment of Martin County

Sheriff’s Office Deputies Albauer, Beath, Bundy, Fritchie, Libasci, Maltese, Pheifle, Tilson, and

Waltersdorff (“the MCSO Defendants”) [DE 231]; and the Motion for Summary Judgment of

Stuart Police Officers Martin, Edens, Cernuto, Huffman, and Kelsay (“the Stuart Defendants”)

[DE 238]. The Court previously referred this case to the Honorable Lisette M. Reid for a Report

and Recommendation on all dispositive matters. Judge Reid issued two Reports on the Motions

for Summary Judgment on December 30, 2019, which the Court will address in turn. See DE 286;

DE 287.

I. Nurse Lee and Nurse Karen’s Motion for Summary Judgment

In the first Report and Recommendation, Judge Reid recommends that Nurse Donna Lee

and Nurse Karen’s Motion for Summary Judgment be granted on the claims against them,

42 U.S.C. § 1983 claims of deliberate indifference to Plaintiff’s medical needs. DE 286. Plaintiff

has not objected to the Report and Recommendation, and the time for filing objections has passed.

The Court has conducted a de novo review of the Report and Recommendation at DE 286 and the

record and is otherwise fully advised of the premises. The Court agrees with the analysis and

conclusions in the Report and Recommendation and finds Judge Reid’s recommendation to be

well reasoned and correct. The Court adopts the Report and Recommendation at DE 286 without

further discussion.

II. The MCSO Defendants’ Motion for Summary Judgment

Plaintiff has pending 42 U.S.C. § 1983 claims of use of excessive force against Deputies

Albauer, Fritchie, Libasci, Maltese, and Tilson. See DE 37. He has pending 42 U.S.C. § 1983

claims of failure to intervene against Deputies Beath, Bundy, Pheifle, and Waltersdorff. Id. In the

second Report and Recommendation, Judge Reid recommends that the MCSO Defendants’

Motion for Summary Judgment on these claims be denied. DE 287. The MCSO Defendants have

not objected to the Report and Recommendation.

As an initial matter, the MCSO Defendants argue in their Motion for Summary Judgment

that Plaintiff’s claims against them are Heck-barred and barred under collateral estoppel.

See DE 231. The Court agrees with Judge Reid’s conclusion that these arguments are unavailing.

See DE 287 at 16-22; see also Hadley v. Gutierrez, 526 F.3d 1324, 1331-32 (11th Cir. 2008);

Dyer v. Lee, 488 F.3d 876, 878-84 (11th Cir. 2007).

As to the excessive-force claims, the MCSO Defendants have produced evidence in the

form of incident reports and their own affidavits to show that, after Plaintiff was pulled from a car

following a police chase, he resisted being placed into handcuffs and kicked Deputies, he ignored

commands to cease resisting, and Deputy Libasci was concerned that Plaintiff was attempting to

retrieve a concealed weapon. See DE 230 at 2-3. To accomplish Plaintiff’s arrest, Deputies

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Libasci, Albauer, and Maltese each delivered two taser stuns to Plaintiff’s body, Deputy Tilson

delivered multiple closed-fist strikes to Plaintiff’s head, and Deputy Fritchie deployed his K-9,

who bit Plaintiff’s arm. Id. at 3.

In response to the MCSO Defendants’ evidence, Plaintiff has provided evidence in the form

of his own sworn affidavits averring that he was handcuffed and forced to lay prostrate on the

ground “immediately” after being pulled from the car. DE 252-1 at 288; DE 253-3; DE 281.

Plaintiff further avers that the force—the multiple taser stuns, the multiple strikes to his body, and

the deployment of the K-9—was used while he was handcuffed and on the ground. DE 252-1 at

288; DE 253-3; DE 281.

Plaintiff’s evidence creates a genuine issue of material fact as to whether the force used

against him during his arrest was excessive and whether Deputies Albauer, Fritchie, Libasci,

Maltese, and Tilson are entitled to qualified immunity. See Saunders v. Duke, 766 F.3d 1262,

1269-70 (11th Cir. 2014) (explaining that qualified immunity does not “immunize officers who

use excessive and gratuitous force after a suspect has been subdued, is not resisting, and poses no

threat”); 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.”); see also United States v. Stein,

881 F.3d 853, 857-59 (11th Cir. 2018) (holding that a non-conclusory affidavit based on personal

knowledge, even if uncorroborated and self-serving, can create a genuine dispute of material fact

that defeats summary judgment). The Court agrees with Judge Reid’s conclusion that the Motion

for Summary Judgment on the excessive-force claims against Deputies Albauer, Fritchie, Libasci,

Maltese, and Tilson must be denied.

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As to the failure-to-intervene claims, the MCSO Defendants contend that Deputies Beath,

Bundy, Pheifle, and Waltersdorff had no obligation to intervene because the force used against

Plaintiff was constitutional. DE 231 at 19. The Court rejects that argument based on the above

analysis. Alternatively, the MCSO Defendants contend that, even if there was an unconstitutional

use of force, the record does not establish that Deputies Beath, Bundy, Pheifle, and Waltersdorff

were in positions to intervene. Id.; see Hadley, 526 F.3d at 1330-31 (“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 liable for his nonfeasance. But it must also be true that the

non-intervening officer was in a position to intervene yet failed to do so.” (citations and quotation

marks omitted)).

The MCSO Defendants point to no evidence to support their conclusory assertion that it

“is not established by the record here” that Deputies Beath, Bundy, Pheifle, and Waltersdorff were

in positions to intervene. See DE 231 at 19; see also DE 230. The MCSO Defendants do not point

to affidavits or depositions of Deputies Bundy, Pheifle, or Waltersdorff to shed light on the issue

of whether they were in positions to intervene. The Court notes that the record does contain an

affidavit of Deputy Beath, and that affidavit, in fact, indicates that he may have been in a position

to intervene. See DE 230-4 at 3 (providing Deputy Beath’s observations of Plaintiff’s arrest and

stating that, at one point, Deputy Beath “grabbed [Plaintiff’s] legs”).

The MCSO Defendants have not satisfied their burden to show that there is no genuine

issue of material fact as to whether Deputies Beath, Bundy, Pheifle, and Waltersdorff were in

positions to intervene. See Fed. R. Civ. P. 56(a) (stating that summary judgment is appropriate

where “the movant shows that there is no genuine dispute as to any material fact and the movant

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is entitled to judgment as a matter of law”); Fed. R. Civ. P. 56(c)(1) (explaining that a “party

asserting that a fact cannot be . . . genuinely disputed must support the assertion by . . . citing to

particular parts of materials in the record” (emphasis added)); see also Clark v. Coats & Clark,

Inc., 929 F.2d 604, 608 (11th Cir. 1991) (stating that the party seeking summary judgment “always

bears the initial responsibility” of demonstrating the absence of a genuine issue of material fact

and that “[o]nly when that burden has been met does the burden shift to the non-moving party to

demonstrate that there is indeed a material issue of fact that precludes summary judgment”). The

Court agrees with Judge Reid’s conclusion that the Motion for Summary Judgment on the

failure-to-intervene claims against Deputies Beath, Bundy, Pheifle, and Waltersdorff must be

denied.

III. The Stuart Defendants’ Motion for Summary Judgment

Plaintiff has pending 42 U.S.C. § 1983 claims of failure to intervene against the Stuart

Defendants. See DE 37. In the second Report and Recommendation, Judge Reid recommends

that the Stuart Defendants’ Motion for Summary Judgment on these claims be denied. DE 287.

The Stuart Defendants have filed an Objection to the Report and Recommendation. DE 288.

The Stuart Defendants argue in their Motion for Summary Judgment that Plaintiff’s claims

against them are Heck-barred and barred under collateral estoppel. See DE 238. The Court rejects

those arguments as previously discussed.

The Stuart Defendants contend that Officers Edens and Cernuto are entitled to summary

judgment on the failure-to-intervene claims because there is no genuine issue as to whether they

were in positions to intervene. The Stuart Defendants do not seek summary judgment as to

Officers Martin, Huffman, and Kelsay on this basis. See id. at 7-8. Moreover, Officers Edens and

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Cernuto do not argue that they are entitled to summary judgment based on qualified immunity.

See generally DE 238 (lacking any reference to qualified immunity).

To support the contention that Officers Edens and Cernuto were not in positions to

intervene, the Stuart Defendants point to similar affidavits of the two Officers. DE 239 at 3;

DE 239-3; DE 239-4. Officer Cernuto avers:

From my vantage point, it was impossible to observe the acts that were

occurring regarding the Plaintiff in this case. I was approximately 5 to 10 feet away

from the incident, it was dark out, and most importantly, my view of the suspect

was being blocked by other officers involved in the apprehension.

Thus it was not possible for me to observe the degree of force the officers

were exerting on the Plaintiff, as well as any potential threat that the Plaintiff posed

to the officers.

DE 239-3 at 2. Officer Edens makes nearly identical averments but asserts that he was

“approximately 20 to 30 feet away from the incident.” DE 239-4 at 2. Plaintiff avers in a sworn

affidavit that, while it was dark out because it was night, the incident occurred “in front of a well

lighted gas station in a very well lighted main intersection.” DE 253-3 at 2.

The Court concludes that there is a genuine issue for trial as to whether Officers Edens and

Cernuto were in positions to intervene. First, a reasonable trier of fact could conclude that a

distance of between 5 and 30 feet is not so far as to render the Officers unable to intervene during

the time that it took Deputies Libasci, Albauer, Maltese, Tilson, and Fritchie to deliver multiple

taser stuns and multiple strikes to Plaintiff’s body and to deploy a K-9. Second, Plaintiff’s affidavit

creates a genuine issue as to whether it was so dark that the Officers could not see the incident

from those distances. Third, even if Officers Edens and Cernuto’s views of the incident were

impeded, a reasonable trier of fact could infer that the incident did not occur quietly and that the

Officers could have deduced what was occurring and intervened accordingly. The Court agrees

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with Judge Reid’s conclusion that the Motion for Summary Judgment on the failure-to-intervene

claims against Officers Edens and Cernuto must be denied.

Accordingly, it is ORDERED AND ADJUDGED as follows:

1. Magistrate Judge Reid’s Report and Recommendation at DE 286 is ADOPTED.

2. Defendants Nurse Donna Lee and Nurse Karen’s Motion for Summary Judgment at

DE 228 is GRANTED.

3. Magistrate Judge Reid’s Report and Recommendation at DE 287 is ADOPTED.

4. The Motion for Summary Judgment of Martin County Sheriffs Office Deputies Albauer,

Beath, Bundy, Fritchie, Libasci, Maltese, Pheifle, Tilson, and Waltersdorff at DE 231 is

DENIED.

5. The Motion for Summary Judgment of Stuart Police Officers Martin, Edens, Cernuto,

Huffman, and Kelsay at DE 238 is DENIED.

DONE AND ORDERED in Chambers, West Palm Beach, Florida, this 31st day of

January, 2020.

ROBIN L. ROSENBERG» 7

Copies furnished to: Plaintiff; Counsel of Record ~UNFTED STATES DISTRICT J UDGE