“But force applied while a suspect has not given up and stopped resisting and may still pose a danger to the arresting officers, even when that force is severe, is not necessarily excessive.”
How later courts described this case
- “But force applied while a suspect has not given up and stopped resisting and may still pose a danger to the arresting officers, even when that force is severe, is not necessarily excessive.”
- “[A]pplication of de minimis force, without more, will not support a claim for excessive force in violation of the Fourth Amendment”
- “When, as here, the defendant is the county sheriff, the [§ 1983] suit is effectively an action against the governmental entity he represents—in this case, Monroe County.”
- stating that the leniency afforded to pro se litigants does not give a court license to rewrite an otherwise deficient pleading to sustain an action
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JAMES R. LEACH,
Plaintiff,
v. Case No: 8:19-cv-330-CEH-CPT
KURT A. HOFFMAN,1 ANTHONY
ALLPORT, KYLE POINSETT, LORI
BETH CLARK, KARLA SMALL,
KYLE COLLISON and MATT
TUGGLE,
Defendants.
___________________________________/
ORDER
This cause comes before the Court upon the Defendants’ Motion for Summary
Judgment (Doc. 82). Plaintiff James R. Leach responds in opposition (Doc. 97).
Proceeding pro se, James R. Leach lodges numerous claims under 42 U.S.C. §
1983 and Florida law against the Sarasota County Sheriff and certain deputy sheriffs.
The Sheriff and the deputy sheriffs now move for summary judgment on all claims.
For the reasons set forth below, the Court will grant Defendants’ Motion for Summary
Judgment.
1 When Leach filed the operative complaint, Thomas Knight served as the Sarasota County
Sheriff. Leach sues Knight in his official and individual capacities. Doc. 50 ¶8. However, the
Court takes judicial notice of the fact that Kurt A. Hoffman became the Sarasota County
Sheriff on January 5, 2021. See Fed. R. Evid. 201(b). As discussed below, although Leach sues
Knight in his official and individual capacities, the Court construes all claims against Knight
as official-capacity claims. Thus, Hoffman is automatically substituted for Knight on all
official-capacity claims against Knight. See Fed. R. Civ. P. 25(d).
I. BACKGROUND
A. Statement of Facts2
The events giving rise to this action occurred at 360 Center Road in Venice,
Florida, on February 7, 2017. Doc. 101 at 2. At that time, James R. Leach resided with
his mother at that location. Id. Leach’s mother called the police to report a domestic
disturbance. Doc. 83 at 4:5–10, 5:19–25, 6:1.3 Sarasota County Deputy Sheriff Lori
Beth Clark responded to the call and was the first officer to arrive on scene. Id. at 4:11–
13. Leach’s mother was at the scene; Leach was not. Id. at 6:2–7; Doc. 95 at 1.4
2 The Court has determined the facts, which are undisputed unless otherwise noted, based on
the parties’ submissions, including: the Amended Statement of Joint Stipulated Facts (Doc.
101); the testimony of Anthony Allport (Doc. 93-1), Lori Beth Clark (Doc. 83), Karla Small
(Doc. 84), Luke Sniegowski (Doc. 89-6), and Matt Tuggle (Doc. 95); and the affidavit of
James R. Leach (Docs. 89-1, 95). Further, where a party fails to properly support an assertion
of fact or properly address another party’s assertion of fact, the court may consider that fact
undisputed. Fed. R. Civ. P. 56(e)(2).
3 For ease of reference, all deposition pinpoint citations refer to the deposition page number,
not the CM/ECF page number.
4 Leach failed to move for summary judgment by the Case Management and Scheduling
Order’s dispositive motion deadline. Instead, on the deadline to respond to Defendants’
summary judgment motion, Leach filed a combined motion for summary judgment and
response to Defendants’ Motion for Summary Judgment (Doc. 89). Leach submitted evidence
in support of that filing. The Court denied the combined motion and response, without
prejudice, stating that Leach had failed to move for summary judgment by the CMSO’s
deadline. Doc. 91. The Court directed Leach to file an amended response within fourteen
days and advised that if he desired an extension of the dispositive motion deadline so that he
could move for summary judgment, he needed to file a motion. Id. Leach neither requested
an extension of the dispositive motion deadline nor moved for summary judgment. Instead,
he filed an amended response to the Motion for Summary Judgment, which is the operative
response (Doc. 97). In this response, Leach references the evidence that he provided in
support of his combined motion and response. Also, Leach filed a “supplement” the day
before filing his amended response, which contains additional evidence (Doc. 95). Here,
Leach did not procedurally default in filing his amended responses. See Mosley v. MeriStar
Mgmt. Co, LLC, 137 F. App’x 248, 250 (11th Cir. 2005) (explaining that procedural default is
Sarasota County Deputy Sheriff Anthony Allport joined Clark at the scene. Doc. 83
at 5:12–18; Doc. 84 at 6:16–18; Doc. 93-1 at 5:21–25, 6:1. For the domestic
disturbance, Clark determined that no crime had occurred; a fear of future violence
was not present because the other party was not present at the scene. Doc. 83 at 7:14–
18, 8:5–9, 51:18–21.
As explained herein, Leach does not dispute that Clark returned to her patrol
vehicle after speaking with his mother and “ran everyone’s information in [the]
computer” and researched the involved parties because she intended to write a report.
Id. at 7:14–23, 8:2–22, 34:15–20. Leach also does not dispute that during Clark’s
research into the two parties involved in the domestic disturbance call, a DAVID
search displayed the registered owner of a white van, who was the other party involved
in the domestic dispute, along with a photograph of the owner. Id. at 11:22–25, 14:16–
24. Clark also conducted a driver’s license check on Leach. Id. at 34:15–25, 35:23–25,
36:1–2. Clark learned from the search that Leach’s license was suspended and that he
had three prior convictions for driving while his license was suspended. Id. at 34:8–25,
35:5–13, 37:21–25, 38:1–4, 56:21–25; Doc. 93-1 at 18:22–25, 19:1–10, 32:17–21. Clark
not excused simply because a party is proceeding pro se). Instead, he timely filed his amended
response and that response references earlier evidence. As such, the Court will consider
Leach’s submitted evidence. See Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir.
2012) (stating that district courts “must consider all evidence in the record when reviewing a
motion for summary judgment—pleadings, depositions, interrogatories, affidavits, etc.—and
can only grant summary judgment if everything in the record demonstrates that no genuine
issue of material fact exists”).
believed that “three [prior DWLS] convictions was a felony [DWLS], and therefore
was arrestable.” Doc. 83 at 32:12–22.
The parties also do not dispute that, at some point after Clark’s arrival, Leach
drove by the residence in his van. Doc. 83 at 10:9–12; Doc. 95 at 1. Beyond that, Clark
and Allport testified that Clark observed Leach and that the deputies followed him.
Clark and Allport testified to the following facts. Clark claims that she observed a
white van driving west on Center Road while conducting the driver’s license check on
Leach outside the home, Doc. 83 at 10:9–13, 13:2–3, whereas Allport testified that he
and Clark had already departed from the residence and were “maybe a half mile away
from the residence” when they “ma[de] contact” with Leach, Doc. 93-1 at 9:1–25,
10:1. Clark identified the van’s driver, who was the other party involved in the reported
disturbance, as Leach. Doc. 83 at 11:22–25, 14:16–24, 56:21–25; Doc. 93-1 at 11:16–
23. Leach’s mother had informed Clark that Leach was wearing a red shirt, and Clark
observed that the van’s driver was also wearing a red shirt. Doc. 83 at 15:19–23, 55:2–
10. Because the driver matched the description of Leach based upon Clark’s
observation of the white van, the driver’s license photograph on DAVID, and the red
shirt, Clark pursued the van. Id. at 11:22–25, 15:6–10, 24–25, 16:1–5.
According to Clark, she drove her vehicle out of the driveway, turned right onto
Center Road, and traveled eastbound briefly before making a U-turn into the
westbound left lane of Center Road to initiate a traffic stop. Id. at 24:14–22. She turned
on her patrol vehicle’s emergency lights as soon as she pulled out of the driveway to
initiate the traffic stop. Id. at 19:20–25, 20:1. She testified that Allport was behind her
in his vehicle. Id. at 25:5–7. The van continued to drive west, and Clark followed the
van to a traffic light. Id. at 19:14–19, 24:21–25. The van then made a U-turn, traveled
eastbound, and pulled into the residence’s driveway. Id. at 19:14–19, 24:23–25, 25:1–
5. As a result, Clark “basically made a big circle” in pursuing the van. Id. at 25:3–4.
On the other hand, Leach claims in his affidavit that when he drove back to the
house from the Venice Food Mart, he observed two patrol vehicles outside the house.
Doc. 95 at 1. As a result, he drove past the house and back to the Venice Food Mart.
Id.5 When he drove back to the house for the second time, he observed that the patrol
vehicles were gone, and he pulled into the driveway. Id. Contrary to the testimony of
Clark and Allport, Leach asserts that no patrol vehicle pulled behind him for an
attempted traffic stop. Doc. 95 at 2.
The parties do not dispute that, at some point, Leach drove the van into the
residence’s driveway, exited the van, and entered the house. Doc. 83 at 17:20–25,
18:1–10; Doc. 93-1 at 13:8–22. But the parties dispute whether Clark and Allport
encountered Leach in the driveway. Clark and Allport testified to the following facts
as to that encounter. The van, on which Clark and Allport had attempted to initiate a
traffic stop, pulled into the driveway, and Leach exited the van. Doc. 83 at 17:20–24;
Doc. 93-1 at 13:20–22. Clark testified that she asked Leach for his driver’s license, but
he stated that he did not have a driver’s license, or something to that effect, and walked
5 Although Leach submitted two affidavits (Docs. 89-1, 95), the later one adds information.
As such, the Court will consider that affidavit.
away from Clark and towards the residence. Doc. 83 at 17:20–25, 18:1–5, 11–18. Clark
testified that, based upon her earlier searches in DAVID and other databases, she came
up with probable cause to believe that Leach was committing a felony by driving while
his license was suspended. Id. at 56:20–25. Small and Allport commanded Leach to
stop. Id. at 27:17–19; Doc. 93-1 at 18:16–18. Allport testified that he commanded
Leach to stop because the deputies were conducting an investigation into the domestic
disturbance and then into Leach’s suspended license. Doc. 93-1 at 18:16–25, 19:1–2.
Allport issued this command because the deputies wanted to discuss Leach’s
suspended license with him. Id. at 21:13–17. Leach ignored the command and went
into the house. Id. at 22:4–8. On the other hand, in addition to claiming that no patrol
vehicle pulled behind him for an attempted traffic stop, Leach states in his affidavit
that no officer contacted him in the front yard; he pulled into the driveway after
noticing that the patrol vehicles were gone, entered the house, and sat down to watch
television.6 Doc. 95 at 1.
The parties also do not dispute that Allport and Clark, joined by Deputy Sheriff
Karla Small, entered the house and that Leach was sitting in a chair. Doc. 83 at 44:22–
25, 45:1; Doc. 84 at 8:2–5; Doc. 93-1 at 27:19–21; Doc. 95 at 2; Doc. 101 at 2. Leach
does not dispute Clark’s testimony that the deputies wrote citations before entering.
Doc. 83 at 27:20–25. Allport testified that, while outside, Clark indicated that they
6 Leach also claims that he has a cell phone video, taken five minutes before his arrest, which
does not show any patrol vehicles parked in the front yard or driveway. Doc. 95 at 2. He also
claims that he does not acknowledge any contact with the deputies in this video. Id. However,
Leach has not submitted this video for the Court’s review, despite the opportunity to do so.
would “move forward” with the felony DWLS case. Doc. 93-1 at 23:16–23. The three
deputies entered the house to issue the citations and arrest Leach for felony driving-
while-license-suspended (“DWLS”). Id. at 30:5–7; Doc. 83 at 45:16–22. They arrested
Leach for felony DWLS. Doc. 101 at 2; Doc. 95 at 17:19–25. While inside the
residence, Small tasered Leach once. Doc. 101 at 2.
The parties present differing accounts of what occurred in the house. First, the
parties dispute whether Leach’s mother opened the door to the house for the deputies.
Doc. 93-1 at 24:16–23; Doc. 84 at 8:14–16; Doc. 95 at 2. The following facts are
derived from testimony of Allport, Clark, or Small. The deputies approached Leach in
the chair, and Allport told him to stand up because he was under arrest for driving
with a suspended license. Doc. 93-1 at 27:25, 28:1–3; Doc. 83 at 45:8–15. Leach
refused to stand up. Doc. 84 at 9:16–20. When the officers tried to place handcuffs on
Leach’s left wrist, Leach physically resisted: he clenched his fists, tightened his body,
pulled his arms in front of himself, braced and twisted his body, and refused to be
handcuffed. Doc. 83 at 44:22–25, 45:1–7; Doc. 84 at 9:16–25, 10:1–4; Doc. 93-1 at
28:8–13, 53:6–13. Leach yelled obscenities at the deputies. Doc. 93-1 at 53:20–25. All
three deputies attempted to place Leach in handcuffs. Doc. 84 at 14:4–7. Allport
grabbed Leach’s wrist “to get into a position” where the deputies “could handcuff
[Leach’s] right wrist.” Doc. 93-1 at 40:14–21. Allport testified that as they stood up
and tried to get Leach’s right wrist behind his back, Leach tried pulling away and
spinning. Id. at 41:2–9. A struggle ensued as Allport attempted to pull Leach’s wrist
behind his back to secure the other handcuff. Id. at 57:1–11. Allport tried to get Leach’s
right wrist in a wristlock and he, along with Small, stumbled towards the living room
wall. Id. at 41:2–9.
Small states that she warned Leach that she would taser him if he did not cease
resisting. Doc. 84 at 30:14–17. According to Small, Leach replied, “Go ahead and tase
me, you f*****g c**t.” Id. at 30:21–24. She deployed her taser because Leach had been
instructed several times to cease resisting and he repeatedly refused to comply. Id. at
28:4–7, 33:20–25. Small deployed the taser one time while Leach was standing and up
against the living room wall, not while he was on the floor. Id. at 14:11–25, 15:1–4.
Leach was then placed face down on the floor and the handcuffs were secured. Id. at
14:11–15. While Leach resisted, he did not indicate to Small or any other deputy that
he had a metal plate in his right arm. Id. at 34:21–25; Doc. 93-1 at 33:14–19. Small
testified that Leach advised her of medical conditions that he was experiencing only
later that day. Doc. 84 at 10:5–7. Leach advised that his arm hurt because he had fallen
at work. Id. at 35:3–17. On the way to jail, Leach told Small that his arm hurt and
referenced a broken arm and an injured back. Id. at 20:11–22, 35:8–22. Allport did not
notice any injuries on Leach, except for the taser marks. Doc. 93-1 at 55:5–8.
However, Leach states in his affidavit that, upon the deputies’ entry into the
home, he asked them for a warrant and inquired why they had walked into the home.
Doc. 95 at 2. He claims that he did not threaten them. Id. He asserts that Allport
extracted him from the chair and forced him to the floor, which “caused a great impact
and laceration” to his elbow. Id. Allport and “the other deputy” tried to straighten his
right arm, but Leach explained that he had a metal plate in his arm and that his arm
could not straighten. Id. Although he asked them to stop, the deputies laughed and
continued. Id. “One deputy” kneed him in his back, causing “shock waves of pain.”
Id. And Small tasered him while he was lying on the floor in handcuffs. Id.
The facts reveal no dispute that, after Leach’s arrest, Sergeant Matt Tuggle and
Deputy Sheriffs Kyle Poinsett and Kyle Collison arrived to the scene. Doc. 89-7 at
7:5–16, 8:17–22; Doc. 84 at 16:10–15. Tuggle served as a supervisor. Doc. 95 at 7:10–
13, 11:1–10. Leach was taken into custody, placed in a patrol vehicle, and transported
to jail. Doc. 101 at 2. Small testified to the following facts concerning her escort of
Leach to her patrol vehicle, which Leach has not addressed. Small claims that, with
Leach handcuffed, she and Collison assisted him to the patrol vehicle. Doc. 84 at
16:23–25, 17:1. According to Small, Leach resisted on the way by dropping his body
weight several times, so the deputies picked him up by his arms only. Id. at 17:5–17.
Leach tried using his legs to avoid being placed into the vehicle. Id.
The parties agree that Leach was inside the patrol vehicle with the windows up
for approximately 45 minutes before his transport to jail. Doc. 95 at 2; Doc. 84 at
18:19–25, 19:6–7. Leach was transported to jail at 6:34 p.m. Doc. 89-6 at p.12.
However, disputes as to the conditions within the vehicle exist. Small testified that the
patrol car was running and that she was inside the vehicle. Doc. 84 at 19:3–10. She
claims that she completed paperwork, waited for paperwork from other deputies, and
waited for her trainee to arrive during that time. Id. at 35:23–25, 36:1–10. She also
stated that she may have exited the vehicle for a few moments to speak with other
deputies, but she was never away from the vehicle. Id. at 19:11–15. However, in his
affidavit, Leach states that the deputies left him in the hot vehicle, with no air
conditioning, and that Small was not in the vehicle. Doc. 95 at 2.7 Leach denies
physically threatening the deputies. Id.
B. Procedural Posture
In the operative complaint, Leach sues Allport, Clark, Small, Collison, Tuggle,
Poinsett—each in his or her individual capacity—and Sarasota County Sheriff Kurt
Hoffman. See Doc. 50 ¶¶8–14. The thirteen-count complaint contains a variety of
claims, including excessive-force claims under 42 U.S.C. § 1983 and state-law claims
for battery and negligence. Leach previously dismissed “Sarasota County
Commissioners” as a defendant from the action (Doc. 53), which resulted in the
dismissal of some claims. Hoffman, Allport, Clark, Small, Collison, Tuggle, and
Poinsett seek summary judgment on all claims (Doc. 82), which Leach opposes (Doc.
97).8 The motion is ripe for the Court’s review.9
7 Although not relevant to the claims, the parties dispute Leach’s conduct on the way to the
jail. According to Small, Leach threatened that he would “beat [her] ass” when they arrived
at the jail, said that he was going to “punch [her] in the face,” and called her a “c**t.” Doc.
84 at 19:19–25, 20:1–10. Detective Luke Sniegowski , who rode in the vehicle, recalled that
Leach was belligerent and cursing. Doc. 89-6 at 12:17–25, 13:1. In his affidavit, Leach denies
calling Small “the names she said [he] called her” because “that word makes [him] cringe.”
Doc. 95 at 2. He also denies telling Small that he would punch her in the face. Id.
8 In his response, Leach buries a request for “expanded discovery” so that he may obtain
Clark’s “history of written citations.” Doc. 97 at 11. The discovery deadline passed before
Leach made this request (Docs. 70, 80), and he fails to demonstrate “good cause” under Rule
16. See Fed. R. Civ. P. 16(b)(4).
9 Hoffman, Allport, Clark, Small, Collison, Tuggle, and Poinsett failed to reply to Leach’s
response in opposition, even though the Case Management and Scheduling Order and the
Local Rules afford them leave to do so. Doc. 46 at 7; Local R. M.D. Fla. 3.01(d).
II. LEGAL STANDARD
Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, with the affidavits, show there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The moving party bears the initial burden of stating the basis for its motion and
identifying those portions of the record demonstrating the absence of genuine issues of
material fact. Celotex, 477 U.S. at 323; Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,
1259–60 (11th Cir. 2004). That burden can be discharged if the moving party can show
the court that there is “an absence of evidence to support the nonmoving party’s
case.” Celotex, 477 U.S. at 325.
When the moving party has discharged its burden, the nonmoving party must
then designate specific facts showing that there is a genuine issue of material fact. Id. at
324. Issues of fact are “genuine only if a reasonable jury, considering the evidence
present, could find for the nonmoving party,” and a fact is “material” if it may affect
the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248–49 (1986). In determining whether a genuine issue of material fact exists, the
court must consider all the evidence in the light most favorable to the nonmoving
party. Celotex, 477 U.S. at 323. But a party cannot defeat summary judgment by
relying on conclusory allegations. See Hill v. Oil Dri Corp. of Ga., 198 F. App’x 852, 858
(11th Cir. 2006).10 Summary judgment should be granted only if “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. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “The court
need consider only the cited materials, but it may consider other materials in the
record.” Fed. R. Civ. P. 56(c)(3).
III. DISCUSSION
The Court will review qualified immunity before turning to Leach’s claims.
A. Qualified Immunity
“To establish the defense of qualified immunity, the burden is first on [the public
official] to establish that the allegedly unconstitutional conduct occurred while he was
acting within the scope of his discretionary authority.” Harbert Int’l, Inc. v. James, 157
F.3d 1271, 1281 (11th Cir. 1998). A government official acts within his or her
discretionary authority “if the actions were (1) undertaken pursuant to the
performance of [his or her] duties and (2) within the scope of [his or her] authority.”
Lenz v. Winburn, 51 F.3d 1540, 1545 (11th Cir. 1995) (internal quotation marks and
alterations omitted). In applying this test, “a court must ask whether the act
complained of, if done for a proper purpose, would be within, or reasonably related
to, the outer perimeter of an official’s discretionary duties.” Harbert, 157 F.3d at 1282
(internal quotation marks omitted).
10 Unpublished decisions of the Eleventh Circuit are not binding precedent, but may be cited
as persuasive authority. 11th Cir. R. 36-2.
If a defendant establishes that he or she acted within discretionary authority, the
burden shifts to the plaintiff to demonstrate that qualified immunity is inappropriate.
Brooks v. Warden, 800 F.3d 1295, 1306 (11th Cir. 2015). As such, the plaintiff must
“satisfy the following two-pronged inquiry: (1) whether the facts that a plaintiff has
shown make out a violation of a constitutional right; and (2) whether the right at issue
was clearly established at the time of the defendant’s alleged misconduct.” Gilmore v.
Hodges, 738 F.3d 266, 267 (11th Cir. 2013) (citing Pearson v. Callahan, 555 U.S. 223,
232 (2009)). A court may address either prong first. See Pearson, 555 U.S. at 236.
A court must “resolve all issues of material fact in favor of the plaintiff, and then
determine the legal question of whether the defendant is entitled to qualified immunity
under that version of the facts.” Stephens v. DeGiovanni, 852 F.3d 1298, 1313 (11th Cir.
2017) (internal quotation marks omitted). With the facts construed in this manner, the
Court “ha[s] the plaintiff’s best case” and “material issues of disputed fact are not a
factor in the court’s analysis of qualified immunity and cannot foreclose the grant or
denial of summary judgment based on qualified immunity.” Id. (internal quotation
marks omitted).
B. Count I – Excessive Force under 42 U.S.C. § 1983 against Allport,
Clark, and Small
In Count I, Leach sues Allport, Clark, and Small for excessive use of force in
violation of his rights under the Fourth and Fourteenth Amendments. See Doc. 50
¶120. Clark argues that Leach cannot establish an excessive-force claim because the
undisputed facts show that she did not apply physical force against Leach. Doc. 82 at
10. Allport and Small argue that the undisputed facts indicate that the force applied in
arresting Leach was objectively reasonable, thereby precluding a Fourth Amendment
excessive-force claim. Id. at 10–12. And all three deputies argue that even if the
undisputed facts demonstrate a constitutional violation, qualified immunity applies
because Leach cannot demonstrate that they violated clearly established law. Id. at 15–
16. While the contours of this claim are unclear because Leach brings the claim against
Allport, Clark, and Small, the Court construes this excessive-force claim, as framed by
Leach, as arising from his arrest within the residence. As such, the Fourth
Amendment, not the Fourteenth Amendment, governs this excessive-force claim. Lee
v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002).
Because Allport, Clark, and Small have raised qualified immunity as a defense
in seeking summary judgment, the Court must analyze qualified immunity as to each
deputy.11 See Alcocer v. Mills, 906 F.3d 944, 951 (11th Cir. 2018). The parties do not
dispute that Allport, Clark, and Small entered the residence and arrested Leach. The
parties also do not dispute that Small was one of the deputies who escorted Leach from
the residence to the patrol vehicle. Allport, Clark, and Small each acted within their
discretionary authority. See Perez v. Suszczynski, 809 F.3d 1213, 1218 (11th Cir. 2016)
(“Here, because Suszczynski was attempting to arrest or restrain Arango, Suszczynski
was ‘clearly engaged in a discretionary capacity,’ which means immunity could attach
to his actions.”); Tucker v. Bradshaw, No. 11-80058-CIV-Ryskamp/Hopkins, 2012 WL
11 Each defendant has raised qualified immunity as an affirmative defense. Doc. 51 at 24.
13018592, at *3 (S.D. Fla. Dec. 20, 2012) (stating that a deputy sheriff’s “investigation
of [the plaintiff] and his decision to arrest and transport him were ‘discretionary
functions,’ carried out in the course of his official job duties”). As such, Leach must
show that the deputies violated a constitutional right that was clearly established at the
time.
The Fourth Amendment protects individuals “against unreasonable searches
and seizures.” U.S. Const. amend. IV. “[A]ll claims that law enforcement officers have
used excessive force—deadly or not—in the course of an arrest, investigatory stop, or
other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and
its ‘reasonableness’ standard, rather than under a ‘substantive due process’ approach.”
Graham v. Connor, 490 U.S. 386, 395 (1989) (original emphasis removed).
i. De Minimis Force, Probable Cause, and Arguable Probable Cause
Application of de minimis force, without more, will not support an excessive-
force claim in violation of the Fourth Amendment. Nolin v. Isbell, 207 F.3d 1253, 1257
(11th Cir. 2000). But while the use of force below a de minimis threshold ordinarily will
not be actionable, de minimis force will violate the Fourth Amendment if the officer is
not entitled to arrest or detain the suspect. Reese v. Herbert, 527 F.3d 1253, 1272 (11th
Cir. 2008). To that end, the Court must analyze whether the deputies had probable
cause or arguable probable cause. See id. (reciting the standards for probable cause and
arguable probable cause in the context of analyzing an excessive-force claim and
stating “[w]e begin our inquiry, therefore, with the question of whether [the deputy
sheriff] had probable cause or arguable probable cause to arrest” the plaintiff). To
determine whether probable cause existed, a “reviewing court must simply ask
‘whether a reasonable officer could conclude . . . that there was a substantial chance of
criminal activity.’” Washington v. Howard, 2 F.4th 891, 899 (11th Cir. 2022) (alteration
and emphasis in original) (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 586
(2018)). “Probable cause does not require conclusive evidence and is not a high bar.”
Id. (internal quotation marks omitted). As for arguable probable cause, the Eleventh
Circuit has previously stated that “[a]rguable probable cause exists where reasonable
officers in the same circumstances and possessing the same knowledge as the
[d]efendants could have believed that probable cause existed . . . .” Brown v. City of
Huntsville, 608 F.3d 724, 734 (11th Cir. 2010).
Despite Leach’s arrest, the summary judgment record contains few records
related to the arrest. But the parties do not dispute that Leach was arrested for felony
DWLS or that Allport, Clark, and Small entered the residence to arrest Leach for
felony DWLS.12 Thus, the Court examines whether Clark had probable cause or
arguable probable cause to arrest Leach for felony DWLS to determine whether any
de minimis force was unreasonable.
In 2017, Section 322.34 of the Florida Statutes provided, in relevant part:
12 Allport’s and Small’s level-of-resistance reports are the only records pertaining to the arrest
in the summary judgment record, each of which is attached to that officer’s deposition as an
exhibit. Small’s report indicates that Leach was also charged with resisting without violence.
Doc. 84 at 47. This record is consistent with Tuggle’s testimony, who indicated during his
deposition that the basis for Leach’s “detention, arrest and confinement” was “[f]elony
driving while license suspended, third [or] subsequent, and two counts of resisting without
violence.” Doc. 95 at 17:19–25.
(1) Except as provided in subsection (2), any person whose driver
license or driving privilege has been . . . suspended . . . except a
“habitual traffic offender” as defined in s. 322.264, who drives a
vehicle upon the highways of this state while such license or
privilege is . . . suspended . . . is guilty of a moving violation,
punishable as provided in chapter 318.
(2) Any person whose driver license or driving privilege has been
. . . suspended . . . except persons defined in s. 322.264, who,
knowing of such . . . suspension . . . drives any motor vehicle
upon the highways of this state while such license or privilege is
. . . suspended . . . upon:
(a) A first conviction is guilty of a misdemeanor of the second
degree, punishable as provided in s. 775.082 or s. 775.083.
(b) A second conviction is guilty of a misdemeanor of the first
degree, punishable as provided in s. 775.082 or s. 775.083.
(c) A third or subsequent conviction is guilty of a felony of the
third degree, punishable as provided in s. 775.082, s. 775.083,
or s. 775.084.
Fla. Stat. § 322.34(1)–(2) (2017).
Section 322.34 also provided that “[t]he element of knowledge is satisfied if the
person has been previously cited as provided in subsection (1)”; or the person admits
to knowledge of the suspension; “or the person received notice as provided in
subsection (4).” Id. § 322.34(2). The statute provided a rebuttable presumption that the
knowledge requirement was satisfied “if a judgment or order as provided in subsection
(4) appear[ed] in the department’s records for any case except for one involving a
suspension. “ Id. Subsection (4) stated: “Any judgment or order rendered by a court or
adjudicatory body or any uniform traffic citation that cancels, suspends, or revokes a
person’s driver’s license must contain a provision notifying the person that his or her
driver[’s] license has been . . . suspended.” Id.13 Thus, the elements for the offense in
13 The statute also provided that notwithstanding the other provisions of Section 322.34, if a
person’s driver’s license was suspended for “[f]ailing to pay any other financial obligation as
2017 were: (1) license suspension; (2) knowledge of the license suspension; and (3)
“actually driving.” Prater v. State, 161 So. 3d 489, 491 (Fla. 5th DCA 2014).
When viewing the evidence in the light most favorable to Leach and resolving
all factual disputes in his favor, the evidence demonstrates that Clark had at least
arguable probable cause to arrest Leach. First, Clark explained during her deposition
that she conducted a driver’s license check on Leach and learned from the search that
his license was suspended and that he had three prior convictions for driving while his
license was suspended. Because Leach does not dispute these facts in accordance with
Rule 56(c), the Court deems these facts undisputed for purposes of the Motion for
Summary Judgment. See Fed. R. Civ. P. 56(e)(2).
For knowledge of the license suspension, the Motion for Summary Judgment
argues that Leach’s statement in the front yard that he did not have a license indicated
to Clark that he knew of the license suspension. Doc. 82 at 14. But under Leach’s
version of the facts, which the Court must accept, no deputy made contact with him
in the front yard. Nonetheless, the statute provided that knowledge of a suspension is
met if the driver had been previously cited for driving with a suspended license, as
provided in Section 322.34(1). Because the undisputed facts show that Clark learned
that Leach had three prior convictions for driving with a license suspended, the
knowledge element was met under Florida law. Even if Leach did not have
provided in s. 322.245 other than those specified in s. 322.245(1),” upon a second or later
conviction for the same offense of knowingly driving with a suspended license, that person
committed a misdemeanor of the first degree. Fla. Stat. § 322.34(10)(a)–(b)
knowledge, arguable probable cause does not require an arresting officer to prove every
element of an offense. United States v. Quintana, 594 F. Supp. 2d 1291, 1299 (M.D. Fla.
2009) (“While the knowledge element may be critical in securing a conviction under
Fla. Stat. § 322.34(2), ‘[n]o officer has a duty to prove every element of a crime before
making an arrest.’”).
For the final element, Clark testified that she saw Leach driving while situated
in the driveway and immediately pursued him, which led the deputies back into the
driveway, where they commanded Leach to stop. But Allport testified that Clark
advised that she saw the van after they left the scene and that he followed her when
she turned her patrol vehicle around to follow it.14 Under Leach’s version of the facts,
which the Court must accept as true, he drove by the house once when the police
vehicles were parked in the driveway; he drove by a second time when no police
vehicles were in the driveway; no patrol vehicle pulled behind him for an attempted
traffic stop; he pulled into the driveway without making contact with any deputy.15
14 In responding to the Motion for Summary Judgment, Leach highlights this inconsistency
between Allport’s deposition testimony and Clark’s deposition testimony to argue that “the
contradictory testimony between Clark and Allport should be left for a jury to decide whose
story to believe.” Doc. 97 at 13–14. As emphasized, the Court must look to Leach’s version
of the facts and may determine undisputed facts where a nonmoving party fails to properly
address a moving party’s assertion of fact. Fed. R. Civ. P. 56(e)(2). The Court will not
presently resolve any conflict between this testimony. See Anderson, 477 U.S. at 255
(“Credibility determinations, the weighing of evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge, whether [s]he is ruling on a
motion for summary judgment or for a directed verdict.”)
15 Leach also refers to a cellphone video in his possession, which he claims shows that no
patrol vehicle was parked in the front yard or driveway five minutes before his arrest.
However, he has failed to provide that video. Further, the Court notes that Leach alleges in
the complaint that a white van drove by the residence while Clark researched his driver’s
But Leach does not dispute that Clark saw him driving at some point after she
researched the parties involved in the domestic dispute. Therefore, at the very least,
arguable probable cause existed for the arrest. See Fed. R. Civ. P. 56(e)(2). Because
arguable probable cause existed for the arrest, any de minimis force used by Allport,
Clark, or Small will not violate the Fourth Amendment.
ii. Whether the Use of Force Was Excessive
Having determined that arguable probable cause existed, the Court turns to
whether the force used by Allport, Clark, or Small was excessive. According to Leach,
Allport, Clark, and Small entered the residence through the unlocked front door. He
asked them for a warrant and inquired why they had entered the residence, but he did
not threaten them.16 The deputies then used force in arresting him: Allport forced him
license; Clark and Allport saw the van and pulled their patrol vehicles behind the van; and
Clark and Allport attempted a traffic stop on the van, but the van had pulled into the driveway.
Doc. 50 ¶¶ 21–23. Regardless, these contrary allegations do not change the analysis, as the
Court must look to the evidence in determining the facts in ruling upon the Motion for
Summary Judgment.
16 In both his complaint and his response to the Motion for Summary Judgment, Leach
references the deputies’ warrantless entry into the residence. A warrantless entry into a home
is unreasonable and, therefore, violates the Fourth Amendment, subject to two exceptions:
consent and exigent circumstances. McClish v. Nugent, 483 F.3d 1231, 1240 (11th Cir. 2007).
Here, the deputies did not have a warrant to enter the residence. They contend that Leach’s
mother gave them consent to enter, but Leach states that she did not let them in and that she
was in her bedroom when they entered. However, Leach does not bring a separate claim
against Allport, Clark, or Small for violation of his Fourth Amendment rights resulting from
a warrantless entry. See, e.g., Walters v. Freeman, 572 F. App’x 723, 725–26 (11th Cir. 2014)
(analyzing separate claims for excessive force and warrantless entry in violation of the Fourth
Amendment); Bratt v. Genovese, No. 8:13-cv-3210-CEH-AEP, 2015 WL 12835684, at *4–7
(M.D. Fla. Nov. 23, 2015) (same), aff’d, 660 F. App’x 837 (11th Cir. 2016). Leach also does
not allege or argue that the deputies applied excessive force because any force used in an illegal
arrest is necessarily excessive. See Bashir v. Rockdale Cnty., 445 F.3d 1323, 1331–1332 (11th
Cir. 2006) (“[W]here an excessive force claim is predicated solely on allegations that the
to the floor; Allport and another deputy forced his arm to straighten, even though he
told them about the metal plate in his arm and informed them that his arm did not
straighten; one deputy kneed him in the back; and Small tasered him. The Court must
evaluate that force under the Fourth Amendment’s reasonableness standard, asking
whether the force applied was objectively reasonable in light of the facts confronting
the officer, which is a determination from the perspective of a reasonable officer on the
scene, “not ‘with the 20/20 vision of hindsight.’” Mobley v. Palm Beach Cnty. Sheriff
Dep’t, 783 F.3d 1347, 1353 (11th Cir. 2015).
Determining whether the force used to effect a particular seizure is “reasonable”
requires “a careful balancing of the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the countervailing governmental
interests at stake.” Lee, 284 F.3d at 1197 (internal quotation marks omitted). Balancing
the necessity of using some force against the arrestee’s constitutional rights entails
consideration of several factors, including “the severity of the crime at issue, whether
the suspect poses an immediate threat to the safety of the officers and others, and
whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at
1197–98 (internal quotation marks omitted). Other considerations include the need for
arresting officer lacked the power to make an arrest, the excessive force claim is entirely
derivative of, and is subsumed within, the unlawful arrest claim.”). Rather, he claims the force
was excessive because of the injuries that he sustained from that force, including Small’s use
of the taser. The Court will not rewrite the complaint for Leach to bring a claim against the
officers for violation of the Fourth Amendment as a result of a warrantless entry. See Campbell
v. Air Jamaica Ltd., 760 F.3d 1165, 1168 (11th Cir. 2014) (stating that the leniency afforded to
pro se litigants does not give a court license to rewrite an otherwise deficient pleading to sustain
an action).
the application of force, the relationship between the need and the amount of force
used, and the extent of the inflicted injury.” Mobley, 783 F.3d at 1353. The Eleventh
Circuit has rejected the argument that force administered by each defendant in a
collective beating must be analyzed separately. Velazquez v. City of Hialeah, 484 F.3d
1340, 1342 (11th Cir. 2007).
Upon review, Leach fails to establish a constitutional violation here. First,
DWLS is not a severe offense. Because more force is appropriate for a more serious
offense and less force is appropriate for a less serious offense, this factor weighs in
Leach’s favor. See Lee, 284 F.3d at 1198. Next, based on Leach’s account of the facts,
he did not pose an immediate threat to the safety of the deputies or anyone else. He
did not threaten the deputies, and he was watching television when they entered the
residence and approached him. Thus, this factor weighs in Leach’s favor. Under the
third factor, the Court must consider whether Leach actively resisted arrest or
attempted to evade arrest. Allport, Clark, and Small discussed, extensively, Leach’s
resistance to the arrest during their depositions, which are offered in support of the
Motion for Summary Judgment. In his affidavit, Leach does not rebut this testimony.
He does not refute the testimony that he clenched his fists, tightened his body, braced
and twisted his body, pulled away, and refused to be handcuffed, except by stating that
he told the deputies that his arm did not straighten. But this fact does not rebut the
extensive deposition testimony of the deputies concerning the extent of Leach’s
resistance. Thus, the undisputed facts show that Leach resisted the arrest. See Fed. R.
Civ. P. 56(e)(2). To that end, some force was required because Leach was resisting
arrest. See Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th Cir. 2002) (“[W]e recognize
that the typical arrest involves some force and injury.”).
As for the extent of the inflicted injuries, Leach’s affidavit states only that he
sustained a laceration on his elbow when Allport forced him to the floor. Leach also
provides numerous medical records, although those records discuss medical
conditions only generally and do not link the medical conditions to his arrest, nor does
Leach argue such in his response.17
“What would ordinarily be considered reasonable force does not become
excessive force when the force aggravates (however severely) a pre-existing condition
the extent of which was unknown to the officer at the time.” Rodriguez, 280 F.3d at
1353. For example, in Rodriguez, an officer grabbed the plaintiff’s arm; twisted it
around the plaintiff’s back; handcuffed the plaintiff as the plaintiff fell to his knees,
screaming that the officer was hurting him; and placed the plaintiff in a patrol vehicle
while the plaintiff was handcuffed. Id. at 1351. The plaintiff’s arm below the elbow
was amputated as a result of the incident. Id. But the plaintiff admitted that he did not
tell the officer that he had an injured arm and nothing outwardly indicated that his
17 Leach only lists the medical evidence and states that the “laceration to [his] elbow shows
he took a severe blow to his right elbow.” Doc. 97 at 7. Leach also provides an unsigned
opinion entitled “Unsigned Draft Confidential Work Product | Expert Witness Report,”
which states that Leach “sustained painful hardware of his right elbow, right cubital tunnel
and carpal tunnel syndromes, a rotator cuff tear and labral tear of his right shoulder and an
umbilical hernia, as a direct result of the assault by three deputies in 2017.” Doc. 95 at 4.
However, this document is unauthenticated and appears to be some type of draft report, rather
than a finalized document. See Fed. R. Evid. 901, 902. For purposes of this motion for
summary judgment, the Court has not considered this report. Leach concedes that “he
financially is unable to pay for the signed medical opinion.” Doc. 97 at 7.
arm was injured. Id. at 1353. The Eleventh Circuit concluded that the officer’s acts
could not constitute a constitutional violation. Id. On the other hand, the Eleventh
Circuit has reversed summary judgment in favor of an officer on an excessive-force
claim where: the plaintiff claimed to have informed the officer almost immediately
that he suffered from a bad shoulder; the officer was accused of intentionally focusing
on the sore shoulder as to inflict further pain; and at least three instances had occurred
where the officer intentionally grabbed, pushed, or pulled on the plaintiff’s shoulder
after he was handcuffed and forcing him to the ground by intentionally applying stress
to the shoulder. Davis v. Williams, 451 F.3d 759, 767–68 (11th Cir. 2006). Here, the
facts indicate only that Leach told the deputies about the metal plate in his arm and
that his arm did not straighten, but they continued to straighten his arm and laughed.
The facts do not indicate that the deputies knew the extent of his injury or that they
intentionally focused on his arm to inflict further pain.
Thus, although DWLS is not a severe offense and Leach did not initially pose
harm to Allport, Clark, or Small when they entered the residence, he resisted arrest. A
reasonable officer would not believe that forcing an individual to the floor, trying to
straighten the individual’s arm to handcuff him, and kneeing that individual in the
back would constitute excessive force where the individual was resisting arrest by
clenching his fists, tightening his body, bracing and twisting his body, pulling away,
and spinning. Because Leach fails to show that Allport, Clark, and Small committed
a constitutional violation for those actions, the deputies are entitled to qualified
immunity.
Small is also entitled to qualified immunity for deploying her taser because
Leach has not shown that, by deploying her taser, she violated his Fourth Amendment
rights. In a “difficult, tense and uncertain situation,” the use of a taser gun to subdue
a suspect who has repeatedly ignored police instructions and continues to act
belligerently toward police is not excessive force.” Zivojinovich v. Barner, 525 F.3d 1059,
1073 (11th Cir. 2008) (internal quotation marks omitted). To be sure, the Court must
resolve all issues of material fact in Leach’s favor. But in the face of overwhelming
testimony about his resistance to the deputies, Leach provides a two-page affidavit, in
which he simply states that: Allport extracted him from the chair, when he asked the
deputies to stop, they laughed and continued; another deputy kneed him in the back;
and Small tasered him as he was lying down in handcuffs. The affidavit is conclusory
and offers sparse facts. Leach neither refutes the testimony of the officers describing
his acts of resistance, nor explicitly states that he did not resist; he states only that he
was lying down on the floor in handcuffs when he was tased. As discussed above,
Leach resisted arrest. Leach’s version of the facts is insufficient to establish that Small’s
deployment of the taser violated his Fourth Amendment rights. See Buckley v. Haddock,
292 F. App’x 791, 798 n.12 (11th Cir. 2008) (citing cases for the proposition that “an
officer may not use force against an arrestee who was handcuffed and who was not
resisting arrest”); see Mobley, 783 F.3d at 1356 (“But force applied while a suspect has
not given up and stopped resisting and may still pose a danger to the arresting officers,
even when that force is severe, is not necessarily excessive.”). Leach’s version of the
facts does not show that Leach was “handcuffed and pose[d] no risk of danger to the
officer[s].” Id. (internal quotation marks omitted). A reasonable officer in Small’s
position would not believe that one application of the taser would constitute excessive
force. As such, Small is entitled to qualified immunity for deploying her taser.
Finally, to the extent that Leach bases this claim on his escort to Small’s patrol
vehicle or his time in the back of the vehicle, Small is also entitled to qualified
immunity. Small testified that she and Collison escorted Leach to the patrol vehicle
while he was handcuffed and that he resisted by dropping his weight several times,
which resulted in the deputies picking him up by his arms only. Leach does not address
his escort to the patrol vehicle in his affidavit. As such, the undisputed facts show that
Leach resisted during the escort and that the deputies had to pick him up by his arms
only. These actions do not constitute a constitutional violation. See Nolin, 207 F.3d at
1257 (“[A]pplication of de minimis force, without more, will not support a claim for
excessive force in violation of the Fourth Amendment”). Small is entitled to qualified
immunity for any force used while escorting Leach to the patrol vehicle.
And to the extent that Leach bases this claim upon his time in the patrol vehicle,
“[l]eaving a [person] in an unventilated police car in extreme temperatures for a long
period of time can give rise to a Fourth Amendment violation,” but leaving someone
“in an unventilated vehicle in the hot sun for periods of ten and thirty minutes does
not violate the Fourth Amendment.” Borsella v. Parker, No. 6:11-cv-1249-JA-GJK,
2013 WL 375480, at *4 (M.D. Fla. Jan. 31, 2013) (collecting cases and finding that a
deputy sheriff did not violate the Fourth Amendment when confining the plaintiff in
a police car for approximately 35 minutes on a hot day with the windows up and
without air-conditioning). There is no dispute that Leach was inside the “hot” patrol
vehicle, with the windows up, for “almost 45 minutes” on a February evening. Doc.
95 at 2. Under Leach’s version of the facts, the vehicle’s air conditioning was turned
off and Small was not inside the vehicle. But Leach does not present evidence that his
time in the back of the vehicle caused injuries.18 A reasonable officer in Small’s
position would not believe that leaving an individual in a “hot” patrol vehicle with the
windows up and the air conditioning turned off for “almost 45 minutes” on a February
evening in Sarasota, FL, would constitute excessive force.
Even assuming a constitutional violation, such violation was not “clearly
established” at the time of the conduct. For determining whether a reasonable officer
would know that her conduct was unconstitutional, two methods exist: if, in looking
at relevant case law at the time, a concrete factual context exists to render it obvious;
or if the conduct lies so obviously at the core of the conduct prohibited by the Fourth
Amendment that the unlawfulness of the conduct was readily apparent to the officer,
notwithstanding the lack of fact-specific case law. Fils v. City of Aventura, 647 F.3d 1272,
1291 (11th Cir. 2011). The Eleventh Circuit did not directly confront a “hot car” case
until last year. Patel v. Lanier Cnty., 969 F.3d 1173, 1182 (11th Cir. 2020). The Court
has not found, nor has Leach cited to, any controlling precedent squarely governing
the specific facts here and this type of conduct does not so obviously lie at the core of
18 Leach argues in his response that he “experienced a significant focus on the physical
symptoms during the transport” and that the “severity of the pain from the defendants’ actions
left [him] in major distress” and caused “shortness of breath” and “weakness.” Doc. 97 at 4.
However, these arguments are not evidence.
the conduct prohibited by the Fourth Amendment so as to be readily apparent. See,
e.g., Borsella, 2013 WL 375480, at *4; Emmerick v. City of Gatlinburg, No. 3:08-cv-305,
2010 WL 3861047, at *4 (E.D. Tenn. Sept. 24, 2010) (“[T]he Court finds that the
defendants did not violate a clearly established constitutional right when they left
plaintiff in an unventilated police car for 30 minutes” with the windows rolled up and
no air conditioning); Burchett v. Keifer, 310 F.3d 937, 945 (6th Cir. 2002) (finding a
Fourth Amendment violation where the plaintiff-appellant was detained in a police
car with the windows rolled up in ninety degree heat for three hours). As such, Small
is entitled to qualified immunity to the extent that he premises this claim on his time
in the back of the patrol vehicle.
Therefore, the Court will enter summary judgment in favor of Allport, Clark,
and Small on Count I.
C. Count II – Excessive Force under 42 U.S.C. § 1983 against Poinsett
and Collison
In Count II, Leach sues Poinsett and Collison under § 1983 for excessive use of
force in violation of the Fourth and Fourteenth Amendments. See Doc. 50 ¶132.
Poinsett and Collision argue that Leach cannot establish an excessive-force claim
against them because the undisputed facts show that they applied no physical force to
Leach. Doc. 82 at 10. They also argue that even if the undisputed facts could
demonstrate a constitutional violation, Leach cannot show that they violated clearly
established law. Id. at 15. The Court agrees.
Leach alleges that Poinsett and Collison engaged in “another unprovoked
attack” by picking him up from the floor by the chain of the handcuffs and rushing
him out to the patrol vehicle. Doc. 50 ¶58. Poinsett and Collision allegedly continued
to pull up on Leach’s arms while escorting him to the patrol vehicle, with the handcuffs
“cut[ting] through the skin” and the “unreasonable force” creating “significant stress
and strain” to Leach’s left wrist and right elbow. Id. at ¶60. Leach also alleges that
Poinsett and Collison “stuffed” Leach into the back seat of the patrol vehicle, “leaving
him lying on his stomach between the seat and floor,” unattended with no air
conditioning and all windows closed for approximately 40 minutes. Id. at ¶63.
The evidence in the record demonstrates only that Poinsett and Collison arrived
to the scene after Leach’s arrest and that Collision, along with Small, escorted him to
the patrol vehicle. Poinsett and Clark acted within their discretionary authority. See
Perez, 809 F.3d at 1218; Tucker, 2012 WL 13018592, at *3. As such, Leach must show
that Poinsett and Collison violated a constitutional right that was clearly established.
For Poinsett, no evidence shows that Poinsett picked up Leach by the chains of
the handcuffs, escorted him to the patrol vehicle, or pulled on his arms while escorting
him. The evidence also does not show that Poinsett “stuffed” Leach into the back of
the vehicle. The evidence shows only that Poinsett arrived to the scene after Leach’s
arrest. Thus, Poinsett is entitled to qualified immunity for this claim, and the Court
will enter summary judgment in favor of Poinsett on this claim.
As for Collision, the evidence shows that he escorted Leach to the patrol
vehicle. As mentioned in the discussion for Count I, the undisputed facts show that
Leach resisted during the escort to the vehicle and that Small and Collison had to pick
him up by his arms only. For the same reasons discussed above in finding that Small
is entitled to qualified immunity for any force used while escorting Leach to the
vehicle, Collision is entitled to qualified immunity for any force used while escorting
Leach. See Nolin, 207 F.3d at 1257. Finally, for the same reasons that Small is entitled
to qualified immunity for Leach’s time in the back of the vehicle, Collision is entitled
to qualified immunity for Leach’s time in the vehicle.
Therefore, the Court will grant summary judgment in favor of Poinsett and
Collison on this claim.
D. Count III – Excessive Force under 42 U.S.C. § 1983 against Tuggle
In Count III, Leach sues Tuggle individually under § 1983 for excessive use of
force in violation of his rights under the Fourth and Fourteenth Amendments. See Doc.
50 ¶144. Tuggle argues that the undisputed facts show that he applied no physical force
to Leach and, even if the facts demonstrated a constitutional violation, Leach cannot
show that the violation was clearly established. Doc. 82 at 10, 12. The Court will grant
summary judgment in favor of Tuggle on this claim.
In bringing this claim, Leach alleges that Tuggle was acting in a “supervisory
capacity as a Sarasota County Deputy Sheriff.” Doc. 50 ¶143. Leach premises Tuggle’s
liability on Tuggle “st[anding] by and permit[ting] the use of force . . . which was
objectively unreasonable in light of the facts and circumstances confronting him and
other defendants . . .” Id. at ¶146. And he premises the claim upon “Tuggle’s actions
and authorization to use a taser” against Leach. Id. at ¶147.
The undisputed facts show that Tuggle was a supervisor and arrived to the scene
after Leach’s arrest. He responded to the scene because the deputies “asked for a
supervisor to respond due to a taser deployment.” Doc. 95 at 7:10–13. He testified that
his duties in this instance involved ensuring that the taser probe areas were
photographed and that the appropriate paperwork was completed. Id. at 11:5–10. He
sat in his patrol vehicle for most of that time, but also spoke with Allport and Clark
about the incident, ensured that the taser probe picture was taken, that the proper
paperwork was completed, and developed a plan for Small to transport Leach to the
jail. Id. at 9:19–22, 25:23–25, 26:1–9. He also generally acknowledged responsibility
for his deputies as a supervisor. Id. at 15:2–11. Because Tuggle undertook these actions
in accordance with the performance of his duties and within the scope of his authority,
he was acting within his discretionary authority. See Lenz, 51 F.3d at 1545.
Thus, the burden shifts to Leach to show a clearly established constitutional
violation. Tuggle correctly points out that the undisputed facts show that he did not
apply any physical force to Leach. In his affidavit, Leach does not mention Tuggle.
Leach apparently grounds this excessive-force claim on Tuggle’s role as supervisor.
But “supervisory officials are not liable under § 1983 for the unconstitutional
acts of their subordinates on the basis of respondeat superior or vicarious liability.”
Harrison v. Culliver, 746 F.3d 1288, 1298 (11th Cir. 2014) (internal quotation marks
omitted). To hold Tuggle, as a supervisor, liable for a constitutional violation, Leach
must show that Tuggle “either participated directly in the unconstitutional conduct or
that a causal connection exists between [Tuggle’s] actions and the alleged
constitutional violation.” Id. The requisite causal connection “can be established when
a history of widespread abuse puts the responsible supervisor on notice of the need to
correct the alleged deprivation, and he fails to do so.” Id. (quoting Cottone v. Jenne, 326
F.3d 1352, 1360 (11th Cir. 2003), abrogated in part on other grounds by Randall v. Scott,
610 F.3d 701 (11th Cir. 2010)). “Alternatively, the causal connection may be
established when a supervisor’s custom or policy . . . result[s] in deliberate indifference
to the constitutional rights or when facts support an inference that the supervisor
directed the subordinates to act unlawfully or knew that the subordinates would act
unlawfully and failed to stop them from doing so.” Id. (alterations in original). “‘[T]he
standard by which a supervisor is held liable in [his] individual capacity for the actions
of a subordinate is extremely rigorous.’” Id. (alteration in original).
Tuggle cannot be held liable for the actions of the deputies inside the residence
on the basis of respondeat superior or vicarious liability. Further, the undisputed facts
show that Tuggle did not participate in the arrest, which involved Small’s deployment
of the taser. Leach also fails to show a causal connection between Tuggle’s actions and
any violation of Leach’s rights under the Fourth or Fourteenth Amendments under
either causal avenue. To the extent that Leach bases this claim upon force used during
his escort to Small’s vehicle, Tuggle testified that Leach was already outside the house
when he arrived to the scene. Doc. 95 at 10:6–8. Leach does not show Tuggle’s
participation or the requisite causal connection.
As for his time in Small’s vehicle, Leach highlights Tuggle’s testimony that
leaving someone in the back of a patrol car with no air conditioning and the windows
closed “for close to 48 minutes” would be unreasonable. Doc. 97 at 9–10. But the law
determines reasonableness, not Tuggle’s opinion, and this testimony also does not
establish Tuggle’s participation or the requisite causal connection.19 Referencing
Tuggle’s testimony, Leach claims that Tuggle testified that he never checked on Leach
while Leach was in the back of the vehicle, despite knowing of “a taser incident and
possible side effects.” Id. at 10. Even if Tuggle’s testimony is construed in this manner,
this testimony does not show any participation by Tuggle or the requisite causal
connection. And a review of the record does not demonstrate any evidence of such
participation or causal connection.
Therefore, because Leach fails to establish a constitutional violation, Tuggle is
entitled to qualified immunity on this claim, and the Court will enter summary
judgment in Tuggle’s favor.
E. Count IV – First Amendment Retaliation under 42 U.S.C. § 1983
against Allport, Clark, Small, and Tuggle
In Count IV, Leach sues Allport, Clark, Small, and Tuggle for First Amendment
retaliation under § 1983. Allport, Clark, Small, and Tuggle argue that the decision to
arrest Leach preceded his allegedly protected speech, thereby negating the requisite
causation, and, even if the undisputed facts show a constitutional violation, Leach
cannot show that the violation was clearly established. Doc. 82 at 12.
19 Similarly, Leach’s reference to Tuggle’s testimony concerning whether Leach’s offense was
“an arrestable offense” if Leach did not know that his license was suspended does not show
a constitutional violation here. Doc. 97 at 10.
In framing this claim, Leach alleges that in response to his questioning of the
deputies’ entry into the residence, Allport, Small, and Clark violently extracted him
from his chair and forced him to the ground, with Allport remarking, “There’s your
warrant.” Doc. 50 ¶¶29–30. Leach claims that this comment shows “[r]etaliatory
animus” and that his questioning of the deputies was a substantially motivating factor
in the use of excessive force. Id. at ¶159. Leach claims that they participated in the use
of force as a means of retaliation for Leach’s speech. Id. at ¶161.20
Beginning with Tuggle, he was acting within his discretionary authority for the
reasons mentioned in the discussion of Count III. As such, the burden shifts to Leach.
To establish a First Amendment retaliation claim, Leach “must demonstrate that (1)
he engaged in protected speech; (2) the defendant’s conduct adversely affected the
protected speech; and (3) a causal connection exists between the speech and the
defendant’s retaliatory actions.” Bailey v. Wheeler, 843 F.3d 473, 480 (11th Cir. 2016).
Causation standards vary depending on the nature of the First Amendment retaliation
claim. For example, for a retaliatory-prosecution claim, a plaintiff must establish a
“but-for” causal connection, which involves both pleading and proving (1) a retaliatory
motive on the part of the defendant and (2) the absence of probable cause. Rehberg v.
20 Leach also alleges that Allport, Clark, Small, and Tuggle are liable “for the injuries and
damages resulting from the objectively unreasonable and conscience-shocking force of each
other officer” because they did not take any reasonable steps to protect him from the
retaliation. Id. at ¶161. In the excessive-force context, the Eleventh Circuit has recognized that
“[a] non-arresting officer may be liable for another officer’s use of excessive force, but only if
the non-intervening officer was in a position to intervene yet failed to do so.” Brown, 608 F.3d
at 740 n.25. But this claim is for First Amendment retaliation, not excessive force.
Paulk, 611 F.3d 828, 848–49 (11th Cir. 2010). In the employment context, “the plaintiff
must show that the defendant was subjectively motivated to take the adverse action
because of the protected speech.” Castle v. Appalachian Tech. Coll., 631 F.3d 1194, 1197
(11th Cir. 2011). Regardless of which causation road the Court travels down, the
evidence does not show any causal connection between Leach’s questioning of the
deputies and a retaliatory action by Tuggle. To the extent that Leach premises this
claim against Tuggle on Tuggle’s supervisory authority, Tuggle is entitled to qualified
immunity for the reasons outlined in the discussion of Count III. As such, Tuggle is
entitled to qualified immunity for this claim.
Next, Allport, Clark, and Small acted within their discretionary authority for
the reasons discussed above. Despite Leach’s allegations, the evidence does not show
that Allport said, “There’s your warrant” after Leach questioned the deputies’ entrance
into the residence. Further, the evidence does not support, nor does Leach point to
anything in the record indicating, that his questioning of the deputies was a
substantially motivating factor in the use of excessive force. He fails to establish a
causal connection between the force used by Allport, Clark, and Small and his speech.
Thus, Allport, Clark, and Small are entitled to qualified immunity for this claim.
Therefore, because Allport, Clark, Small, and Tuggle are entitled to qualified
immunity here, the Court will enter summary judgment in their favor on this claim.
F. Count V – Malicious Prosecution under 42 U.S.C. § 1983 against
Allport, Clark, Small, and Tuggle
In Count V, Leach sues Allport, Clark, Small, and Tuggle under § 1983 for
malicious prosecution in violation of his Fourth and Fourteenth Amendment rights.
Allport, Clark, Small, and Tuggle contend that arguable probable cause existed for
charging Leach “with several offenses, including felony DWLS and resisting an officer
without violence.” Doc. 82 at 14. They argue that even if the undisputed facts
demonstrate a constitutional violation, qualified immunity applies because Leach
cannot show a violation of clearly established law. Id. at 15. The Court will enter
summary judgment in favor of Allport, Clark, Small, and Tuggle on this claim.
In framing this claim, Leach contends that he had a “constitutional right to be
free from malicious prosecution without probable cause under the Fourth Amendment
and in violation of due process under the Fourteenth Amendment.” Doc. 50 ¶171. He
alleges that Allport, Clark, Small, and Tuggle violated his “Fourth and Fourteenth
Amendment rights to be free from malicious prosecution without probable cause and
without due process when they worked in concert to secure false charges against him,
resulting in his malicious prosecution.” Id. at ¶173. He claims that certain criminal
proceedings were ultimately terminated in his favor and that the prosecutor “decline[d]
one resisting charge and the other would be dismissed by the Court pursuant to the
Motion to Suppress.” Id. at ¶179. He also alleges that the prosecutor stipulated to the
facts in that motion, thereby reflecting a “prosecutorial judgment that the case could
not be proven beyond a reasonable doubt.” Id. at ¶179.
Allport, Clark, Small, and Tuggle acted within their discretionary authority. See
Lenz, 51 F.3d at 1545. Thus, the burden shifts to Leach. The analysis proceeds under
the Fourth Amendment. Rehberg, 611 F.3d at 853 (“A malicious prosecution claim
arises under the Fourth Amendment, not Fourteenth Amendment substantive due
process.”). “To establish a federal malicious prosecution claim under § 1983, the
plaintiff must prove a violation of his Fourth Amendment right to be free from
unreasonable seizures in addition to the elements of the common law tort of malicious
prosecution.” Wood v. Kesler, 323 F.3d 872, 881 (11th Cir. 2003). The elements of the
common law tort of malicious prosecution are: “(1) a criminal prosecution instituted
or continued by the present defendant; (2) with malice and without probable cause; (3)
that terminated in the plaintiff accused's favor; and (4) caused damage to the plaintiff
accused.”21 Grider v. City of Auburn, 618 F.3d 1240, 1256 (11th Cir. 2010).
Here, Leach provides no evidence to support the elements of common-law
malicious prosecution—he fails to demonstrate a criminal prosecution that was
terminated in his favor and caused damage to him, let alone an action initiated with
malice and without probable cause. A motion to suppress is attached to his complaint,
but this record is the only record supplied from the state action. To be sure, Leach’s
allegations reference the state action, such as his allegations transcribing a portion of
the hearing on the motion to suppress and his allegations that the state court accepted
21 Although the Eleventh Circuit has utilized the six elements of a malicious-prosecution claim
under Florida law in some § 1983 actions, Grider more recently set forth the elements listed
here and noted that “[w]hen malicious prosecution is brought as a federal constitutional tort,
the outcome of the case does not hinge on state law, but federal law, and does not differ
depending on the tort law of a particular state.” 618 F.3d at 1256 n.24. The four elements
listed above are “in essence the same as Florida’s elements.” Olin v. Scales, No. 6:12-cv-1455-
JA-TBS, 2014 WL 1621952, at *5 n.10 (M.D. Fla. Apr. 22, 2014).
his “nolo plea on the DWLS and withheld judgment on that charge.” Doc. 50 ¶¶94–
95. But Leach must produce evidence, not allegations, to support his claims at this
stage of the litigation. See A.L. by and through D.L. v. Walt Disney Parks & Resorts US,
Inc., 900 F.3d 1270, 1289 (11th Cir. 2018) (“The nonmoving party may not rest upon
the mere allegations or denials of his pleading.”). Leach’s assertions in the body of his
response, without supporting evidence, are also insufficient. No party has attempted
to direct the Court to records of which the Court may take judicial notice, either.22 In
the absence of evidence supporting this claim, Leach fails to establish a constitutional
violation, and Allport, Clark, Small, and Tuggle are entitled to qualified immunity.
Therefore, the Court will enter summary judgment in favor of Allport, Clark,
Small, and Tuggle on this claim.
G. Count VI – “Deliberate Indifference” by the Sheriff for “Policies,
Practices, Customs, Training, and Supervision”
In Count VI, Leach brings a claim under § 1983 for deliberate indifference
against Knight for “Policies, Practices, Customs, Training, and Supervision” in
violation of his Fourth and Fourteenth Amendment rights. Doc. 50 at 28. Leach
premises this claim upon the “deficient training” of Clark, Allport, Small, and Tuggle,
which “led to [his] false arrest.” Id. at ¶187. Leach alleges that Clark, Allport, Small,
and Tuggle received deficient training because a certified driving record did not
support his arrest for felony DWLS. Id. at ¶¶187–189. He alleges that the
22 In reciting facts concerning the state action, the Motion for Summary Judgment relies upon
Leach’s allegations, Doc. 82 at 7, which were denied in the answer, Doc. 51 at 7.
circumstances concerning his lack of knowledge, and lack of notice, undermine any
arrest for DWLS. Id. at ¶190. And in responding to the Motion for Summary
Judgment, Leach argues that “the defendants” either “deliberately ignored the law by
charging [him] with DWLS” or were “not adequately trained by Defendant Knight in
[P]olicy PAT 120.06,” which, according to Leach, addresses procedures for handling
persons charged with DWLS. Doc. 97 at 11. Because the Court construes this claim
as an official-capacity claim, the claim is against Hoffman.23 Thus, the Court construes
this claim as a § 1983 claim against Hoffman, in his official capacity as Sarasota
County Sheriff, for violating Leach’s Fourth and Fourteenth Amendment rights based
on a deliberate-indifference failure-to-train theory.
This claim against Hoffman in his official capacity is effectively a claim against
the governmental entity that Hoffman represents. See Cook ex rel. Estate of Tessier v.
Sheriff of Monroe Cnty., 402 F.3d 1092, 1115 (11th Cir. 2005). “Because the real party
in interest in an official-capacity suit is the governmental entity and not the named
official, the entity’s policy or custom must have played a part in the violation of federal
law [or the Constitution].” Troupe v. Sarasota Cnty., No. 8:02-cv-53-SCB-MAP, 2004
23 The Motion for Summary Judgment construes Counts VI, VII, VIII, and IX as raising only
official-capacity claims. Doc. 82 at 1 n.1. In responding, Leach does not dispute this
characterization. As discussed herein, the Court also construes Counts VI, VII, VIII, and IX
as raising only official-capacity claims. Even if Leach intends for Counts VI, VII, VIII, or IX
to serve as an individual-capacity claims against Knight under § 1983 for supervisory liability,
entry of summary judgment for Knight on any of those claims would be appropriate because
Leach fails to show that Knight directly participated in unconstitutional conduct or that a
causal connection exists between Knight’s actions and a constitutional violation. See Harrison,
746 F.3d at 1298.
WL 5572030, at *13 (M.D. Fla. Jan. 22, 2004) (alteration in original) (internal
quotation marks omitted).24
“[A] governmental entity is liable under § 1983 only when the entity itself is a
‘moving force’ behind the deprivation,” and, thus, “in an official-capacity suit, the
entity’s ‘policy or custom’ must have played a part in the violation of federal law.”
Kentucky v. Graham, 473 U.S. 159, 166 (1985). “[T]o impose § 1983 liability on a
municipality, a plaintiff must show: (1) that his constitutional rights were violated; (2)
that the municipality had a custom or policy that constituted deliberate indifference to
that constitutional right; and (3) that the policy or custom caused the violation.”
McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004); see Martin v. Wood, 648 F.
App’x 911, 914 (11th Cir. 2016) (reciting this rule where a plaintiff brought an official-
capacity claim against a Florida sheriff under § 1983). “In order for a plaintiff to
demonstrate a policy or custom, it is generally necessary to show a persistent and wide-
spread practice.” McDowell, 392 F.3d at 1290.
24 “Determining the entity a Florida sheriff represents in a section 1983 official capacity suit
has proven problematic.” C.P. by and through Perez v. Collier Cnty., 145 F. Supp. 3d 1085, 1097
(M.D. Fla. 2015). Florida sheriffs are elected officials who exercise independent control over
many matters, “including the selection of personnel and the hiring, firing, and setting salaries
of such personnel.” Edwards v. City of Ft. Myers, No. 2:19-cv-711-SPC-NPM, 2021 WL
1627475, at *7 (M.D. Fla. Apr. 27, 2021) (citing Fla. Stat. § 30.53).“In Florida, a county has
no authority and control over a sheriff’s law enforcement function.” Troupe v. Sarasota Cnty.,
No. 8:02-cv-53-SCB-MAP, 2004 WL 5572030, at *13 (M.D. Fla. Jan. 22, 2004). But see Cook
ex rel. Estate of Tessier v. Sheriff of Monroe Cnty., 402 F.3d 1092, 1115 (11th Cir. 2005) (“When,
as here, the defendant is the county sheriff, the [§ 1983] suit is effectively an action against the
governmental entity he represents—in this case, Monroe County.”).
But a plaintiff may also prove a policy “by showing that the municipality’s
failure to train evidenced a ‘deliberate indifference’ to the rights of its inhabitants.”
Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). “To establish a ‘deliberate
or conscious choice’ or such ‘deliberate indifference,’ a plaintiff must present some
evidence that the municipality knew of a need to train and/or supervise in a particular
area and the municipality made a deliberate choice not to take any action.” Id.; see
Knight through Kerr v. Miami-Dade Cnty., 856 F.3d 795, 820 (11th Cir. 2017) (applying
these deliberate-indifference standards in an action against a county).
The Sheriff argues that Leach has not established a constitutional violation, a
policy or custom, or deliberate indifference. Doc. 82 at 16–20. As discussed above,
Leach has not established a constitutional violation. And Leach has not demonstrated
any custom or policy that constituted deliberate indifference to his Fourth or
Fourteenth Amendment rights or that such policy or custom caused a violation of
those rights. He has failed to present any evidence of knowledge of a need to train or
supervise or a deliberate choice not to take action. Although he cites to Policy PAT
120.06 in his response, he fails to provide a copy of that policy. Nonetheless, the
assertion that Allport, Clark, Small, and Tuggle were inadequately trained in Policy
PAT 120.06 fails to show the requisite evidence of deliberate indifference. Ultimately,
Leach claims that Allport, Clark, Small, and Tuggle received “deficient training”
because of circumstances “call[ing] into question [his] arrest for DWLS.” Doc. 50 ¶¶
187, 190. In the absence of any evidence of the requisite custom or policy, or that the
policy or custom was a “moving force” for a constitutional violation, Hoffman is
entitled to summary judgment in his favor on this claim. See Gold, 151 F.3d at 1350
(explaining that a defendant “is not automatically liable” under § 1983 even if it
inadequately trained or supervised its police officers and those officers violated [a
plaintiff’s] constitutional rights”). Therefore, the Court will enter summary judgment
in Hoffman’s favor on this claim.
H. Count VII –“Deliberate Indifference” by the Sheriff for “Failing to
Equip Deputies with Body Cam[eras]”
Here, Leach brings a claim under § 1983 for deliberate indifference against
Knight for “Failing to Equip Deputies with Body Cam[eras].” Doc. 50 at 30. Leach
alleges that “the individual defendants” were not equipped with body cameras because
“Knight said no to them.” Id. at ¶199. He claims that his constitutional rights would
not have been violated if Allport, Clark, Small, Tuggle, Poinsett, and Collison had
been equipped with body cameras. Id. at ¶200. Knight allegedly maintains a policy of
not equipping deputies with body cameras. Id. at ¶201. Leach does not specify which
constitutional rights were violated. But, as discussed above, Leach’s constitutional
rights were not violated. The Court construes this claim as a claim under § 1983 against
Hoffman, in his official capacity as Sarasota County Sheriff, for an allegedly
unconstitutional policy or custom.25
25 Leach references “deliberately indifferent training and supervision” and a “failure to
supervise” in this claim. Doc. 50 ¶¶203–204. But based on the allegations above, the Court
does not construe this claim as raising a deliberate-indifference failure-to-train theory. Even
if the Court did construe this claim as arising under that theory, entry of summary judgment
in Hoffman’s favor is warranted for the same reasons set forth in the discussion of Count VI.
In seeking summary judgment on this claim, the Sheriff replicates his argument
for Count VI. Doc. 82 at 16–20. Leach has not shown any evidence of a policy or
custom of not equipping deputies with body cameras. Leach has not shown that such
a policy or custom was a “moving force” behind a violation of a constitutional right,
either. At this stage of the litigation, Leach must produce evidence, not allegations, to
support his claims. See Walt Disney Parks & Resorts US, 900 F.3d at 1289. Therefore, the
Court will enter summary judgment in Hoffman’s favor on this claim.
I. Count VIII –“Deliberate Indifference” by the Sheriff’s “Training, and
Supervisory Liability”
In Count VIII, Leach brings a claim under § 1983 for “Deliberate Indifference
by Knight’s Training, and Supervisor Liability” in violation of his Fourth and
Fourteenth Amendment rights. Doc. 50 at 32. Leach alleges that Knight violated his
Fourth Amendment right to be free from excessive force and his right to substantive
due process under the Fourteenth Amendment when he failed to adequately train
deputies “in the constitutional limitations of conducting a warrantless entry into a
person’s home without consent [or] exigent circumstances.” Id. at ¶208. He claims that
Knight, as a chief policymaker, bears responsibility for training “to maintain an
effective police force that is capable and prepared to deal with encounters with non-
threatening people” and that the deputies’ conduct at the scene was “contrary to
established police methods for interacting with non-threatening persons.” Id. at ¶¶209–
10. And he claims that no deputies were sufficiently trained to “reasonably and
effectively deal with [his] medical situation.” Id. at ¶212. As such, Leach bases this
claim on Knight’s purported failure to train deputies in constitutional limitations and
medical care. Therefore, like Count VI, the Court construes this claim as a claim under
§ 1983 against Hoffman, in his official capacity as Sarasota County Sheriff, for
allegedly violating Leach’s Fourth and Fourteenth Amendment rights based on a
deliberate-indifference failure-to-train theory.
In seeking summary judgment here, the Sheriff replicates his argument for
Counts VI and VII. Once again, Leach has failed to provide evidence of a custom or
policy that constituted deliberate indifference to Fourth or Fourteenth Amendment
rights or that such policy or custom caused a violation of those rights. He has again
failed to present any evidence of knowledge of a need to train or supervise or a
deliberate choice not to take action. Therefore, the Court will enter summary judgment
in Hoffman’s favor on this claim.
J. Count IX – Deliberate Indifference” by the Sheriff for “the
implementation of Unconstitutional Written General Order 22.6”
In Count IX, Leach brings a claim under § 1983 for “Deliberate Indifference”
by Knight “for the implementation of Unconstitutional Written General Order 22.6.”
Doc. 50 at 34. Leach alleges that General Order 22.6, which allegedly is a “written
policy that deals with the use of a taser,” is unconstitutional because the order gives
discretion to an individual deputy to determine when to order medical assistance for a
person who has been tased. Doc. 50 ¶¶217–219.
The Sheriff repeats his argument for Counts VI, VII, and VIII. “A policy is a
decision that is officially adopted by the municipality, or created by an official of such
rank that he or she could be said to be acting on behalf of the municipality.” Sewell v.
Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir. 1997) (citing Brown v. City of Ft.
Lauderdale, 923 F.2d 1474, 1479–80 (11th Cir. 1991)). Despite alleging that the Sheriff
implemented an unconstitutional order, the record lacks any evidence of General
Order 22.6. The only mention of General Order 22.6 in the evidence is Tuggle’s vague
reference to “General Order 22,” in which he simply acknowledges that “General
Order 22” exists. Doc. 95 at 17:2–6. Although some of Leach’s allegations address the
contents of General Order 22.6, there is no evidence before the Court as to the contents
of General Order 22.6.26 Thus, Leach cannot establish the unconstitutionality of
General Order 22.6 or any liability resulting therefrom. Therefore, the Court will enter
summary judgment in favor of Hoffman on this claim.
K. Remaining State-Law Claims
Finally, Leach brings several state-law claims: a battery claim against Clark and
Allport; a battery claim against Small; a battery claim against Poinsett and Collison;
and a negligence claim against Knight. Doc. 50 ¶239–251. “[I]n the usual case in which
all federal-law claims are eliminated before trial, the balance of factors to be considered
under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and
comity—will point toward declining to exercise jurisdiction over the remaining state-
law claims. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). Therefore, the
26 The answer “admits the content” generally alleged, but denies Leach’s allegations “as
phrased” and avers that General Order 22.6 speaks for itself and must be read in its entirety.
Doc. 51 at 17–18.
Court will decline to exercise its supplemental jurisdiction over these remaining
claims. See 28 U.S.C. § 1367(c)(3) (“[D]istrict courts may decline to exercise
supplemental jurisdiction over a claim under subsection (a) if . . . the district court has
dismissed all claims over which it has original jurisdiction.”). As such, the Court will
dismiss the state-law claims, without prejudice.
IV. CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED:
1. Defendants’ Motion for Summary Judgment (Doc. 82) is GRANTED.
2. The Clerk is directed to enter JUDGMENT on Count I in favor of
Defendants Anthony Allport, Lori Beth Clark, Karla Small and against
Plaintiff James R. Leach.
3. The Clerk is directed to enter JUDGMENT on Count II in favor of
Defendants Kyle Poinsett and Kyle Collison and against Plaintiff James R.
Leach.
4. The Clerk is directed to enter JUDGMENT on Count III in favor of
Defendant Matt Tuggle and against Plaintiff James R. Leach.
5. The Clerk is directed to enter JUDGMENT on Counts IV and V in favor of
Defendants Anthony Allport, Lori Beth Clark, Karla Small, and Matt
Tuggle and against Plaintiff James R. Leach.
6. The Clerk is directed to enter JUDGMENT on Counts VI, VI, VIII, and
IX in favor of Defendant Kurt A. Hoffman and against Plaintiff James R.
Leach.
7. The Court declines to exercise supplemental jurisdiction over Counts XII,
XIII, XIV, and XV. Those claims are DISMISSED, without prejudice.
8. The Clerk is directed to terminate all deadlines and to CLOSE this case.
DONE AND ORDERED in Tampa, Florida on March 28, 2022.
Cha ene Chwards None gl
Charlene Edwards Honeywell
United States District Judge
Copies to:
Counsel of Record and Unrepresented Parties, if any
47