Hill v. Florio

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

TYRONE ANTHONY HILL, )

)

Plaintiff, )

)

v. ) CV424-036

)

JOHN FLORIO, et al., )

)

Defendants. )

ORDER

Pro se plaintiff Tyrone Anthony Hill filed a 42 U.S.C. § 1983

Complaint alleging that he was subjected to excessive force during the

course of an arrest and that officers fabricated testimony to enhance the

charges against him. See doc. 1 at 8-11. The Court screened his

Complaint, authorized service of the excessive force claims against

Defendants John Florio (“J. Florio”), Carlos Escobedo, Lacy Florio (“L.

Florio”), and Jeremy Salerno, and dismissed the remaining claims. See

generally doc. 10. Defendants appeared and moved to dismiss. Doc. 16.

Plaintiff responded in opposition. Doc. 21. Defendants replied. Doc. 23.

The Motion to Dismiss is, therefore, ripe for review. For the reasons

explained below, the Motion is GRANTED. Doc. 16.

In considering a motion to dismiss brought pursuant to Federal

Rule of Civil Procedure 12(b)(6), a court must “accept[ ] the allegations in

the complaint as true and constru[e] them in the light most favorable to

the plaintiff.” Belanger v. Salvation Army, 556 F.3d 1153, 1155 (11th Cir.

2009) (citation omitted). However, unlike factual allegations, conclusions

in a pleading “are not entitled to the assumption of truth.” Ashcroft v.

Iqbal, 556 U.S. 662, 664 (2009). On the contrary, legal conclusions “must

be supported by factual allegations.” Id. Indeed, “conclusory allegations,

unwarranted factual deductions or legal conclusions masquerading as

facts will not prevent dismissal.” Davila v. Delta Airlines, Inc., 326 F.3d

1183, 1185 (11th Cir. 2003). Therefore, “only a complaint that states a

plausible claim for relief survives a motion to dismiss.” Iqbal, 556 U.S.

at 679.

Hill’s Complaint alleges that he was subjected to excessive force

during the course of his arrest and transportation to detention on August

8, 2023. See, e.g., doc. 1 at 8-11. The Court previously noted that the

allegations themselves indicated that, perhaps, the force alleged was not

excessive. See doc. 10 at 3. In their Motion to Dismiss, defendants divide

Hill’s allegations into three separate “incidents.” See doc. 16 at 2-6. Hill

does not dispute defendants’ interpretation of his claims. See generally

doc. 21. The Court will, therefore, follow the division into “incidents” in

discussing the merits of the Motion. Before considering the substantive

arguments, however, the Court must determine whether officers’ body-

worn camera recordings, submitted by defendants, see, e.g., doc. 18, may

be considered in evaluating their Motion to Dismiss.

As the Eleventh Circuit has explained, “[i]n general, district courts

must limit their consideration to the pleadings and any exhibits attached

to the pleadings when ruling on a motion to dismiss.” Swinford v. Santos,

121 F.4th 179, 186-87 (11th Cir. 2024) (citation omitted). However,

materials “incorporated by reference” to the complaint may be

considered, without converting the motion to dismiss into a motion for

summary judgment. Id. Such materials may be considered if they are

“(1) central to the plaintiff’s claim; and (2) undisputed, meaning that

[their] authenticity is not challenged.” Id. (quoting Johnson v. City of

Atlanta, 107 F.4th 1292, 1300 (11th Cir. 2024)). In this Circuit the

incorporation-by-reference doctrine applies to police officers’ body-worn-

camera video of relevant events, even if they are not explicitly

incorporated. Id. (citing Baker v. City of Madison, Ala., 67 F.4th 1268,

1277-78 (11th Cir. 2023)).

Hill addresses the videos but does not raise any substantial

challenge to their authenticity. First, he questions whether he explicitly

incorporated the videos into his Complaint but protests he does not have

access to confirm any reference. See doc. 21 at 2-3. Although the Court

cannot discern any explicit reference to the officers’ recordings in the

Complaint, the Eleventh Circuit has made it clear that such explicit

reference is not necessary. See Johnson, 107 F.4th at 1300 (“[W]hen

resolving a motion to dismiss . . . , a court may properly consider a

document not referred to or attached to a complaint under the

incorporation-by-reference doctrine . . . .” (emphasis added)). To the

extent that Hill does not concede the recordings’ authenticity, as

Defendants point out, he does not identify any fact impugning it. See doc.

23 at 2-3; doc. 21 at 4-9. As the court explained in Swinford, a plaintiff

need not affirmatively “stipulate that a video is authentic.” 121 F.4th at

187-88. Moreover, like the video recordings in Swinford, the videos

attached to Defendant’s Motion, “[w]hile [they] may be ‘incomplete’ in the

sense that they do not show every angle [of the events at issue], they

clearly show unedited footage of the event underlying [plaintiff’s]

excessive force claim.” Id. The recordings are, therefore, properly

considered in evaluating the Motion to Dismiss.

Defendants move to dismiss based on their entitlement to “qualified

immunity.” See, e.g., doc. 16 at 8. “Qualified immunity protects

government officials performing discretionary functions from suits in

their individual capacities unless their conduct violates ‘clearly

established statutory or constitutional rights of which a reasonable

person would have known.’” Dalrymple v. Reno, 334 F.3d 991, 994 (11th

Cir. 2003) (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)). The

doctrine is “intended to ‘allow government officials to carry out their

discretionary duties without the fear of personal liability or harassing

litigation, protecting from suit all but the plainly incompetent or one who

is knowingly violating the federal law.’” Hoyt v. Cooks, 672 F.3d 972, 977

(11th Cir. 2012) (quoting Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.

2002), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223

(2009)). As a result, qualified immunity “liberates government agents

from the need to constantly err on the side of caution by protecting them

both from liability ‘and the other burdens of litigation, including

discovery.’” Holmes v. Kucynda, 321 F.3d 1069, 1077 (11th Cir. 2003)

(quoting Lambert v. Fulton Cnty., 253 F.3d 588, 596 (11th Cir. 2001)).

But qualified immunity does not protect an official who “knew or

reasonably should have known that the action he took within his sphere

of official responsibility would violate the constitutional rights of the

plaintiff.” Id. (quoting Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982)).

To rely upon qualified immunity, a defendant must first show that

he acted within his discretionary authority. Mobley v. Palm Beach Cnty.

Sheriff Dep’t, 783 F.3d 1347, 1352 (11th Cir. 2015). Specifically, a

defendant must show that he “was (a) performing a legitimate job-related

function (that is, pursuing a job-related goal), (b) through means that

were within his power to utilize.” Holloman ex rel. Holloman v. Harland,

370 F.3d 1252, 1265 (11th Cir. 2004). If a defendant shows that he was

acting within his discretionary authority, “the burden shifts to the

plaintiff to show that the official is not entitled to qualified immunity,”

by showing both that the defendant violated a constitutional right and

that the violation was clearly established. Skop v. City of Atlanta, Ga.,

485 F.3d 1130, 1137 (11th Cir. 2007).

Defendants’ showing that their conduct during all of the relevant

periods was within their respective discretionary authorities is limited,

at best. Defendants’ Motion, while it acknowledges the threshold

requirement, only addresses it in the most cursory fashion. See doc. 16

at 8. The extent of their argument is the accurate observation that

“[m]aking arrests is within the official responsibilities of police officers.”

Id. (citing Crosby v. Monroe Cnty., 394 F.3d 1328, 1332 (11th Cir. 2004)).

However, it is not entirely clear that all of the officers were “making [an]

arrest[ ]” during the entirety of the relevant events. Defendants’ reply

brief points out that Plaintiff has not challenged their assertion that all

of the acts complained of were within their respective discretionary

authorities. See doc. 23 at 4.

As discussed below, there is some ambiguity concerning the scope

of the arrest and detention in this case. Cf. Crocker v. Beatty, 995 F.3d

1232, 1253-54 (11th Cir. 2021) (Newsom, J. concurring) (noting that

“[t]he main opinion finds it unnecessary to decide whether . . . one who

has been arrested but has not yet been taken before a magistrate for a

probable-cause determination,” is either an arrestee or a pretrial

detainee). The Court is, therefore, loath to conclude that Defendants

have all borne their burden by simply asserting, without any further

discussion, that arrests are within the general discretionary authority of

law enforcement officers. However, even though Defendants do not point

it out, transporting a suspect to jail is also within officers’ discretionary

authority. See, e.g., Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir.

2002), overruled on other grounds by Pearson, 555 U.S. 223 (finding

officer’s discretionary authority “clear . . . when he . . . transported

[Plaintiff] to jail.”); Davis v. Lowers, 132 F. App’x 302, 304 (11th Cir.

2005) (“Here, no one disputes that Defendants were acting within the

scope of their discretionary authority by arresting [Plaintiff] and

transporting him to the jail.”). Moreover, as discussed below, the Court

finds that the video recordings show that no constitutional violations

occurred, under either the Fourth or Fourteenth Amendment standard.

Thus, even if the Defendants were not entitled to qualified immunity

against Plaintiff’s claims, they would still be entitled to dismissal for his

failure to state any claim upon which relief may be granted.1 Under the

1 Defendants’ assertion that Plaintiff’s claims should be dismissed for failure to state

a claim, as distinct from their assertion of qualified immunity is ambiguous. Their

Motion invokes Rule 12(b)(6), which implies that they assert the Complaint fails to

state a claim. See doc. 16 at 1. As this Court has explained “the qualified immunity

inquiry and the Rule 12(b)(6) standard become intertwined.” A.K.J. v. Roundtree,

2025 WL 462514, at *3 (S.D. Ga. Feb. 11, 2025) (internal quotations and citation

circumstances, and given Plaintiff’s nonopposition, the Court will

assume, without deciding, that Defendants have borne their threshold

burden. Cf. Charles v. Johnson, 18 F.4th 686, 698 (11th Cir. 2021) (“It is

undisputed that [the defendants] were acting within the scope of their

discretionary authority.”); Davis, 132 F. App’x at 304-05; Clay v. Banks,

2021 WL 5240839, at *4 (S.D. Ga. Aug. 6, 2021) (“Where it is undisputed

the [defendant] was acting within her or his discretionary authority, it

falls to the plaintiff to ‘show that qualified immunity should not apply.’”

(quoting Crocker, 995 F.3d at 1239-40), adopted 2021 WL 4130522 (S.D.

Ga. Sept. 10, 2021).

Given the assumption that the Defendants were acting within the

scope of their discretionary authority during all of the events relevant to

Plaintiff’s claims, the Court proceeds to consider whether Plaintiff has

alleged or shown that a constitutional right has been violated and

whether the right at issue was “clearly established” at the time of the

omitted). “Thus, if a defendant asserts a qualified immunity defense in a Rule

12(b)(6) motion to dismiss, the Court should grant qualified immunity if the plaintiff’s

complaint fails to allege a violation of a clearly established constitutional or statutory

right.” Id. (quoting Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282,

1300 (11th Cir. 2007)) (internal quotation marks and alteration omitted). Any defect

in the Defendants’ showing regarding their discretionary authority is, therefore,

harmless.

alleged misconduct. See, e.g., Pearson, 555 U.S. at 232. The Supreme

Court has clarified that courts have discretion to consider whether a

constitutional violation occurred and whether the right was clearly

established in either order, see, e.g., Pearson, 555 U.S. at 236, and “[t]he

absence of a constitutional violation ends the analysis of qualified

immunity,” Land v. Sheriff of Jackson Cnty. Fla., 85 F.4th 1121, 1126

(11th Cir. 2023) (citing Pearson, 555 U.S. at 242); Davis, 132 F. App’x at

304 (“The threshold inquiry [for qualified immunity] is whether

[Plaintiff’s] allegations, if true, establish a constitutional violation.”). As

explained below, the Court finds that the videos establish that no

constitutional violation occurred. Since the Court finds that no

constitutional violation occurred, any claim that any Defendant failed to

intervene must also fail. See Williams v. Radford, 64 F.4th 1185, 1199

(11th Cir. 2023) (“Of course, a failure-to-intervene claim requires an

underlying constitutional violation. An officer cannot be held liable for

filing to stop or intervene when there was no constitutional violation

being committed.” (internal quotation marks, alteration, and citation

omitted)).

The Fourth Amendment “encompasses the right to be free from

excessive force during the course of a criminal apprehension. [Cit.] To

establish a Fourth Amendment claim for excessive force, a plaintiff must

allege (1) that a seizure occurred and (2) that the force used to effect the

seizure was unreasonable.” Corbitt v. Vickers, 929 F.3d 1304, 1315 (11th

Cir. 2019) (internal quotation marks and citations omitted). “Under the

Fourth Amendment, [courts] evaluate whether force is excessive by

applying an objective reasonableness standard. [Cit.] That is, [they] ask

whether the officer’s conduct is objectively reasonable in light of the facts

confronting the officer.” Brooks v. Miller, 78 F. 4th 1267, 1282 (11th Cir.

2023) (internal quotation marks and citations omitted).

“Determining whether the force used to effectuate a particular

seizure is ‘reasonable’ under the Fourth Amendment 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.” Graham v. Connor, 490 U.S. 386, 396 (1989) (internal

quotations omitted). “In determining the reasonableness of the force

applied, [courts] look at the fact pattern from the perspective of a

reasonable officer on the scene with knowledge of the attendant

circumstances and facts, and balance the risk of bodily harm to the

suspect against the gravity of the threat the officer sought to eliminate[,]”

keeping in mind “that officers make split-second decisions in tough and

tense situations.” Morton v. Kirkwood, 707 F.3d 1276, 1281 (11th Cir.

2013) (internal quotation marks and citations omitted).

Evaluating whether use of force violates the Fourth Amendment

involves two steps. Charles, 18 F.4th at 699. First, the Court must

determine whether the type of force used is categorically

unconstitutional. Id. At the second step, if the force is not categorically

unconstitutional, the Court evaluates whether it was excessive, applying

the factor-test established in Graham. Id. Among the specific factors

courts consider are “whether the suspect poses an immediate threat to

the safety of the officers or others, and whether he is actively resisting

arrest or attempting to evade arrest by flight.” Id. (internal quotation

marks omitted). If force is necessary, courts also consider whether the

amount of force used was reasonable, considering “(1) the need for the

application of force, (2) the relationship between the need and amount of

force used, and (3) the extent of the injury inflicted.” Stephens v.

DeGiovanni, 852 F.3d 1298, 1324 (11th Cir. 2017).

“Incident 1,” as identified in Defendants’ Motion, includes the

events beginning with Defendants J. Florio and Escobedo’s initial contact

with Hill until Hill is finally subdued. See doc. 16 at 1-2. The Complaint

alleges that those Defendants “quickly approached [Hill] without [his]

noticing,” “grabbed” his hands and arms, “snatch[ed] them behind [his]

back,” placed him in handcuffs that were excessively tight, and directed

him toward a patrol vehicle by “shoving [him] and slangging [sic] [him] .

. . .” Doc. 1 at 8. Allegedly in response to the forceful treatment, Hill

“took off running,” jumped over a fence, and fell. Id. Although not

included in the Complaint, Hill’s response to the Motion to Dismiss

contends that “the officers [sic] applied pressure point technique to neck

and wrist,” and he fled “after [his] complaints was [sic] ignored.” Doc. 21

at 12. The Complaint alleges that, after he fled, officers followed Hill

over the fence, tackled him, and restrained him on the ground until other

officers arrived. Doc. 1 at 8.

Review of the relevant body-worn camera video belies Hill’s

allegations. The video captured by Defendant J. Florio’s body-worn

camera2 shows that officers did not approach Hill surreptitiously. Two

marked vehicles parked on either side of the car in which Hill was sitting

with the driver’s door open. He appears to look directly at Escobedo as J.

Florio approaches. Defendant J. Florio instructs Hill to step out of the

vehicle, and Hill turns to look at him, before J. Florio arrives at the

vehicle. J. Florio does not “grab” Hill’s hands or arms; he instructs Hill

to raise his hands and turn around. Hill complies. Although J. Florio

does grasp Hill’s wrist, it is clear that Hill himself puts his hands behind

his back. While it is impossible to discern how tight the handcuffs are

from the video, it is clear that Hill does not complain about them or ask

that they be loosened. Instead, he asks, relatively calmly, “What did I

do?” Officer Escobedo explains the reasons for Hill’s arrest and, with one

hand gripping Hill’s upper arm, walks him first toward one, then toward

the other vehicle. It is clear from the video recorded by Defendant

Escobedo’s body-worn camera3 that there is no “shoving.” Hill does not

2 The described footage is captured on the video labeled “J. Florio Body Cam (Exhibit

1)”.

3 The described footage is captured on the video labeled “Escobedo Body Cam (Exhibit

2).

object to the treatment at all until he breaks Escobedo’s—apparently

loose—grip on his arm and flees headlong.

It is clear that, at least until Hill flees, neither Defendant J. Florio

nor Escobedo subjected him to excessive force. Up to the point when Hill

flees, the video does not indicate that either officer did anything more

than touch Hill incidentally in the course of effecting his arrest,

apparently on a warrant. There is no question that physical contact is

not categorically unconstitutional force, in the context of effecting a

lawful arrest. See, e.g., Sevostiyanova v. Cobb Cnty. of Ga., 484 F. App’x

355, 359 (11th Cir. 2012) (“The right to make an arrest carries with it the

right to use some degree of physical force . . . , and the typical arrest

involves some force.” (citing Lee, 284 F.3d at 1200)). “During an arrest,

the application of de minimis force, without more, will not support a claim

of excessive force in violation of the Fourth Amendment.” Charles v.

Chambers, 2024 WL 4266842, at *4 (11th Cir. Sept. 23, 2024) (internal

quotation marks and citation omitted). The recordings by Defendants J.

Florio and Escobedos’ body-worn cameras show that the force used, prior

to Hill’s flight, was no more than de minimis.

The events subsumed in what Defendants call “Incident 1,” also

include a period after Hill flees and before he is finally subdued and

escorted to a patrol car. See doc. 16 at 2. Defendants acknowledge that

they “held Plaintiff to the ground,” and that Plaintiff “complained that he

could not breathe.” Id. Hill’s Complaint does not clearly allege any claim

arising from those events. See doc. 1 at 7. His only description states:

“Ofc. J. Florio came over the fence first and laid on me using his body

weight to hold me down. Ofc. Escobedo came over the fence next and he

to[o] used his weight to assist in holding me down.” Id. at 8. There is no

question that physically subduing a suspect is not categorically

unconstitutional. See, e.g., Clinch v. Chambers, 2024 WL 644567, at *10

(S.D. Ga. Feb. 15, 2024) (citing, inter alia, Charles, 18 F.4th at 699, 701)

(explaining that “[t]ackling an arrestee is not categorically

unconstitutional”).

The Court’s analysis of the force used by J. Florio and Escobedo is

complicated by the fact that both officers’ body-worn cameras were

dislodged as they surmounted the fence. There is, therefore, no video

recording of the officers’ interactions with Hill until Defendant Salerno

arrives and his body-worn camera captures the events.4 Despite the

absence of any video recording, dismissal of any claims arising from that

portion of “Incident 1” that occurred when Hill was subdued after his

flight remains appropriate. Hill’s allegations, even as supplemented in

his response to the Motion to Dismiss, indicates that the only force either

Defendant used was the force necessary to restrain him while they waited

for other officers to arrive. The Court, therefore, concludes that,

notwithstanding the gap in the video, Hill has simply not alleged that he

was subjected to any objectively unreasonable force during the

unrecorded period.

Once Hill has been fully subdued, it is not entirely clear that the

Fourth Amendment continues to apply. Judge Newsom observed,

concurring in Crocker, that the Eleventh Circuit has not conclusively

4 Defendant J. Florio’s body-worn camera is dislodged at 19:15:27. See Ex. 1. Only

grass is visible until he retrieves it at 19:24:36. Id. Defendant Escobedo’s body-worn

camera is dislodged at 19:15:31. See Ex. 2. Again, only grass is visible until he

retrieves it at 19:24:58. Id. Defendant Salerno’s body-worn camera first records Hill

and Defendants J. Florio and Escobedo at 19:18:39. See Ex. 3 (“J. Salerno Body Cam

Footage). There are, therefore, approximately three minutes of time that are not

recorded by any defendant’s body-worn camera. Because the events are captured by

multiple defendants’ body-worn cameras, the Court cites to the internal timestamp,

visible in the upper right-hand corner of all the videos.

determined whether “one who has been arrested but has not yet been

taken before a magistrate for a probable cause determination . . . is (1)

an arrestee whose excessive-force claim should be analyzed under the

Fourth Amendment or instead (2) a pretrial detainee whose excessive-

force claim should be analyzed under the Fourteenth Amendment.”

Crocker, 995 F.3d at 1253 (Newsom, J. concurring). Other courts have

approved, at least passively, treating excessive-force claims that arise

while officers are “transporting [individuals] to the police station and

then to a jail cell,” as arising under the Fourth Amendment. Miranda-

Rivera v. Toledo-Davila, 813 F.3d 64, 71 (11th Cir. 2016). The

ambivalent treatment is harmless, Judge Newsom explains, see Crocker,

995 F.3d at 1256 n. 3, because “inasmuch as it entails an inquiry into the

objective reasonableness of the officers’ actions, the Fourteenth

Amendment standard has come to resemble the test that governs

excessive-force claims brought by arrestees under the Fourth

Amendment.” Piazza v. Jefferson Cnty. Ala., 923 F.3d 947, 952-53 (11th

Cir. 2019); see also Kingsley v. Hendrickson, 576 U.S. 389, 396-97 (2015)

(holding that “a pretrial detainee must show . . . that the force purposely

or knowingly used against him was objectively unreasonable.”).

The Supreme Court has explained that, in analyzing excessive-force

claims under the Fourteenth Amendment, courts must analyze objective

reasonableness “from the perspective of a reasonable officer on the scene,

including what the officer knew at the time, not with the 20/20 vision of

hindsight.” Kingsley, 576 U.S. at 397 (citation omitted). The Court also

identified several “illustrative” and non-exclusive factors, including: “the

relationship between the need for the use of force and the amount of force

used; the extent of the plaintiff’s injury; any effort made by the officer to

temper or to limit the amount of force; the severity of the security

problem at issue; the threat reasonably perceived by the officer; and

whether the plaintiff was actively resisting.” Id.; see also Ireland v.

Prummell, 53 F.4th 1274, 1297 (11th Cir. 2022). The similarity of the

Kingsley factors and the Graham factors is clear.

“Incident 2,” as identified by Defendants, includes the events

commencing when Hill is taken to a police vehicle and includes officers’

attempts to secure him in the back of the vehicle and concluding after he

is taken to a hospital and cleared to be taken to jail. See doc. 16 at 2-5.

The events of “Incident 2” are, first, captured on Defendant Salerno’s

body-worn camera.5 Defendants J. Florio, Escobedo, and an unidentified

female officer are seen restraining Hill, as he apparently tries to resist

being escorted toward the car. See Ex. 3 at 19:18:56. Hill and the officers

are off-camera for a brief period when Salerno turns to open the door of

his car. Id. at 19:19:00-19:19:06. Hill is held against the car and the

female officer performs a brief pat-down. Id. at 19:19:09-19:19:58.

Defendant Salerno then takes over the search. Id. at 19:19:59-19:21:07.

During the search, the video shows Hill moving and refusing to comply

with J. Florio’s commands to “stop” and “stay still.” Defendants J. Florio,

Escobedo, and Salerno proceed to attempt to place Hill in the back of the

car.

The attempt to place Hill in the car begins when one of the officers,

it is not clear which, instructs him to “get in the car.” Ex. 3 at 19:21:06.

As the three officers attempt to guide Hill into the back of the car, the

video shows him lifting his feet and bracing them against the car. Id. at

19:21:11. They lift him off the ground and attempt to guide his feet into

5 As indicated above, Salerno’s camera captured Defendants J. Florio and Escobedo

as they walk a handcuffed Hill toward his vehicle. See Ex. 3 (“Salerno Body Cam”)

at 19:18:39.

the car. Again, the video shows Hill resisting being placed in the car by

kicking and bracing his feet against it. Id. at 19:21:19. Salerno goes

around the car and tries to pull Hill by his arm and shoulders. See id. at

19:21:46. Another officer takes Salerno’s place. Id. at 19:21:56. When

Salerno returns to stand behind J. Florio, Hill can be seen attempting to

kick J. Florio. Id. at 19:22:02. J. Florio is then able to push Hill’s feet

into the car and shut the door. Id. at 19:22:06. Salerno then returns to

the other side of the car, where Hill’s head is. An officer, who appears to

be Defendant Escobedo, is visibly struggling with Hill. See id. at

19:22:10. Hill appears to use the officers for leverage and stands, trying

to push his way out of the car. Id. at 19:22:15. Throughout the attempts

to secure Hill in the car, an officer can be heard warning him that, if he

does not comply, he will be tased.

Once Hill has pushed himself out of the car, using his legs,

Defendants J. Florio and Escobedo support his upper body while Hill

continues to push against them. See Ex. 3 at 19:22:16. Escobedo appears

to lose his grip as Hill struggles and Hill falls to the ground, striking his

head.6 Id. at 19:22:19. Although Hill appears dazed, he immediately

resumes bracing and pushing his feet against the car to resist being

secured in it. Id. at 19:22:27. Salerno, again, goes back to the other side

of the vehicle, where Hill’s feet can be seen. Id. at 19:22:51. J. Florio can

be seen struggling with Hill and Hill’s feet continue to kick at the officers.

Id. at 19:23:03. J. Florio can be heard instructing Hill to “stop reaching

for my weapon.” Id. at 19:23:01-19:23:02. When J. Florio steps back, Hill

attempts to fling his upper body out of the car, and officers attempt to

shut the door. Id. at 19:23:08. Hill can be seen pushing against the door

with his head, while J. Florio can be heard instructing the other officers

to “watch his head.” Id. at 19:23:11. The officers then manage to secure

the door. Defendant Solereno then drives away from the scene with Hill

secured in the back seat. See id. at 19:23:37. Hill can be heard

complaining of an injury to his “ear drum” and kicking the door of the

car.

After waiting in the parked but running car, Salerno drives Hill to

a hospital and parks. See Ex. 3 at 19:30:00-19:37:19. Hill remains in the

6 The video clearly contradicts Hill’s assertion, in his response to the Defendants’

Motion, that he did not fall. See doc. 21 at 6.

car while officers wait for him to be seen by hospital staff and no officers

interact with Hill until they remove him from the car to enter the

hospital. Id. at 19:37:59-19:52:09.7 Officers remove Hill from the vehicle

without incident. Ex. 1 at 20:06:24-20:06:52. The recording shows that

Hill is bleeding, apparently from his ear, though no wound is visible, and

he states that he is unable to hear. Id. at 20:07:21. A member of hospital

staff attempts to clean a wound on Hill’s ear, but Hill refuses any

treatment.8 See Ex. 1 at 20:28:30-20:28:57. During the period at the

hospital, it does not appear that Hill complains to any medical personnel

about his injuries. Officers wheel Hill out of the hospital on a gurney and

take him to a van for transport to jail. See id. at 20:46:50.

The video recording shows that Hill was not subjected to excessive

force during the events included in “Incident 2.” First, the recordings

show that, during the entire period, Hill was actively resisting arrest and

refusing to comply with officers’ commands. To the extent that Hill

7 Defendant Salerno’s video concludes, but Defendant J. Florio’s body-worn camera

captures the events continuously. See Ex. 1 at 19:52:09.

8 Hill’s Complaint suggests that he did not refuse treatment and that officers

prevented a full medical examination. See doc. 1 at 10 (“The doctor then checked my

ear[,] I moved away from him a little because it was painful. One Ofc stated that they

will just take me since [I’]m refusing, and the doctor allowed this.”). However, the

video clearly records Hill stating “Don’t touch me,” when the nurse or doctor attempts

to examine his ear. See Ex. 1 20:28:45.

alleges that Defendant J. Florio “choke slamm[ed him] into the back seat

of the patrol vehicle . . . [and] struck [Hill] 3 times in the head,” doc. 1 at

10, the video shows that allegation is false. While there is no video

recording from the inside of the vehicle, it is clear that Defendant J.

Florio, physically, could not have “slammed” Hill or struck him with a

baton in the confines of the back seat of the vehicle and during the brief

duration when those events could have occurred. The recordings do

support the inference that J. Florio “punched” Hill during the altercation

in the backseat.9

As Defendants argue, the video shows that Hill’s active resistance

was sufficient to render the force used objectively reasonable. See doc. 16

at 11-12. In strikingly similar circumstances the United States District

Court for the Middle District of Georgia held that a suspect’s resistance

to being placed in the back of a patrol car justified multiple uses of a

taser, in addition to direct physical force. See Lee v. Gee, 722 F. Supp. 3d

1372, 1380-81 (M.D. Ga. 2024). Hill’s resistance here is virtually

identical to the Plaintiff in Lee. See id. at 1380 (noting that “Plaintiff

9 In the video recording, Defendant J. Florio states that he “punched [Hill],” while

he appears to be preparing a written report. See Ex. 1 at 19:52:27.

resisted by hooking his legs under the door of the vehicle, kicking at the

officer behind him, squirming out of the vehicle on the opposite side and

falling on his face, attempting to force his way out of the vehicle . . . , and

pushing against the door with his legs as officers tried to close it.”). Lee

also noted that one of the officers “punched” the plaintiff “in the face

several times during the struggle in the back of the patrol car.” Id.

Finally, Lee noted that the only discernable injuries resulting from the

altercation were “lacerations.” Id. at 1381. The video recordings here

show no discernable injuries and the only evidence that Hill was injured

at all is the minor bleeding visible at the hospital and Hill refused any

medical attention for that injury.10 This Court, therefore, like the court

in Lee, concludes that “[i]n the totality of the circumstances, the . . . use

of force was reasonable and proportional,” and “[e]ach additional use of

force was necessitated by Plaintiff’s own escalation of the situation by

continuing . . . resistance.” Id. at 1381. “As such, Plaintiff’s complaint,

considered in light of the video evidence, is not sufficient to show that he

suffered a constitutional violation.” Id.

10 The severity of any injury Hill suffered is also called into question by his immediate

resumption of physical resistance when officers attempt to secure him in the van after

the hospital, as discussed below.

Defendants Motion describes “Incident 3,” as comprised of the

attempts of Defendants J. Florio, L. Florio, and Escobedo to secure Hill

in a transport van. J. Florio’s body-worn camera video shows that officers

release the handcuffs securing Hill to the gurney and, once officers

attempt to place him into the transport van, he immediately resumes

physical resistance. See Ex. 1 at 20:48:14. The video shows him brace

his feet on a step up to the van and he begins using that leverage to push

against the officers attempting to boost him into it. His resistance is so

vigorous, that J. Florio’s body worn camera is dislodged. See id. at

20:48:17. From the camera’s vantage point on the ground, the extent and

vigor of Hill’s resistance to the officers is obvious, until its view is

obscured. See id. at 20:48:24-20:48:43. After J. Florio’s camera is

dislodged, the events are captured by Officer Lambert’s body-worn

camera. See Ex. 6, 20:48:43. Both J. Florio and Escobedo clearly instruct

Hill to put his foot into the van multiple times, and Hill clearly does not

comply and continues to push his legs out of the van. J. Florio can be

seen attempting to force Hill’s compliance by pushing and scraping his

leg with a baton. See id. at 20:51:36. Hill neither complies nor indicates

that the baton is particularly painful. Finally, Escobedo informs Hill

that, if he does not comply, he will be pepper sprayed and, when Hill

continues to refuse, pepper sprays him. See id. at 20:51:46. Hill

continues to refuse to place his leg in the van. Defendant J. Florio

retrieves his body-worn camera after Hill has been pepper sprayed. See

Ex. 1 at 20:52:38. It is clear that Hill is continuing to push his foot out of

the van. As J. Florio attempts to push Hill’s leg into the van, Hill extends

his other leg. See id. at 20:53:08-20:53:16. Hill’s kicking, again,

dislodges, J. Florio’s camera. See id. at 20:53:16. The officers are finally

able to secure Hill in the van only after securing his legs with handcuffs.

See Ex. 6 at 20:54:46-20:55:04; see also Ex. 7 at 20:53:16-20:55:04. Officer

L. Florio’s body-worn camera captured the entirety of Hill’s

transportation to the jail. See Ex. 7 at 20:55:04-21:27:45.

As before, the video recordings show that Hill was not subjected to

excessive force during “Incident 3.” As Defendant’s brief explains, Hill’s

active resistance to being placed into the van justified officers’ uses of

force. See doc. 16 at 13-14. Hill’s response to the Defendants’ Motion

does not address “Incident 3” at all. See generally doc. 21. As recounted

above, it is clear from the video recordings, that Hill refused to comply

with the officers’ multiple commands to enter the van and actively and

forcefully resisted multiple attempts to secure his compliance. The

officers’ use of force only escalated as Hill persisted in his noncompliance

and resistance.

As discussed above, some use of force is reasonable in response to a

suspect’s physical resistance to being placed in a police vehicle, incident

to an arrest. See Lee v. Gee, 722 at 1380-81. Cf. Moore v. Danza, 726 F.

Supp. 3d 459, 479-80 (E.D. Cal. 2024) (finding use of a taser to subdue

prisoner who was noncompliant and physically resisted placement in a

transport vehicle by, among other acts, “using his legs to keep the

passenger-side door open,” not excessive, albeit under the Eight

Amendment); Lewis v. Jones, 2024 WL 1345715, at *12 (E.D. Ark. Mar.

29, 2024) (finding use of a taser on suspect who “did not comply [with

order to enter a police vehicle] but remained seated with his legs hanging

out of the door of the vehicle,” was objectively reasonable, under the

Fourth Amendment). Moreover, as Defendants point out, striking a

resisting suspect’s legs in response to such resistance has been

acknowledged as reasonable. See doc. 16 at 13-14 (citing Vickers v.

Georgia, 567 F. App’x 744, 747 n. 3 (11th Cir. 2014)). Similarly, use of

pepper spray on a physically resisting arrestee or detainee has been

recognized as objectively reasonable. See, e.g., Brown v. City of

Huntsville, Ala., 608 F.3d 724, 739 (11th Cir. 2010) (“[T]his Court has

noted that the use of pepper spray is not excessive force in situations

where the arrestee . . . uses force against officers, [or] physically resists

arrest . . . in which cases pepper spray is a permissible way to disable a

suspect without causing permanent physical injury,” and collecting cases

(internal quotation marks and citation omitted)).

In summary, the video recordings of Hill’s arrest and

transportation to jail on August 8, 2023 establish that the force used

against him was objectively reasonable. Hill does not dispute that his

initial arrest was lawful. The videos show that Hill fled from Defendant’s

J. Florio and Escobedo. Once he was subdued, he persistently and

physically resisted officers at every opportunity. In each instance,

officers verbally requested compliance—sometimes reminding him of the

absolute futility of his actions—before any force was deployed. When

Hill’s intransigence necessitated force, the force deployed was extremely

limited. To the extent that it escalated, it escalated proportionally with

Hill’s behavior. Given that the recordings are admissible and show that

each use of force was objectively reasonable, there was no violation of

Hill’s constitutional rights. The lack of a constitutional violation is fatal

to Hills claims, whether considered under the rubric of qualified

immunity or on their merits. Accordingly, Defendant’s Motion to Dismiss

is GRANTED. Doc. 16. Hill’s Complaint is DISMISSED. The Clerk is

DIRECTED to CLOSE this case.

SO ORDERED, this 31th day of March, 2025.

bin

CHRISTOPHER L. RAY

UNITED STATES MAGISTRATE JUDGE

SOUTHERN DISTRICT OF GEORGIA

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