# Batista

> District Court, S.D. Florida · February 4, 2026

URL: https://www.frixlaw.com/law-library/cases/11252112

## Case

- **Full name:** Adonis Batista v. Palm Beach County Sheriffs Office, et al.
- **Court:** District Court, S.D. Florida
- **Decided:** February 4, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11252112

## How later opinions describe it (automated extraction)

- explaining that even if using a taser three times during an arrest was excessive force, the officer would still be entitled to qualified immunity

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

CASE NO. 23-80840-CIV-DIMITROULEAS/D’ANGELO

ADONIS BATISTA,

Plaintiff,

vs.

PALM BEACH COUNTY
SHERIFFS OFFICE, et al.,

Defendants.
__________________________/

REPORT AND RECOMMENDATION
GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

THIS CAUSE is before the Court on Defendants Agent Steven Septien, Agent Eddie
Warren, and Sergent David Vitola’s Motion for Summary Judgment filed on June 10, 2025 (DE
89).1 Plaintiff Adonis Batista, proceeding pro se, filed his response in opposition on December
30, 2025 (DE 106), and Defendants replied on January 6, 2026 (DE 107). Having considered the
Parties’ arguments, the relevant legal authorities, and the pertinent portions of the record, and being
otherwise fully advised in the premises, for the reasons stated below, it is respectfully
recommended that Defendants’ Motion for Summary Judgment be GRANTED.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE2
On September 27, 2022, Defendants Agent Steven Septien, Agent Eddie Warren, and
Sergent David Vitola (collectively, “Defendants”) and members of the Palm Beach County

1 On August 4, 2025, this case was referred to the undersigned Magistrate Judge for all non-
dispositive matters and for a Report and Recommendation on any dispositive matter (DE 95).

2 The factual background is taken from Defendants’ Statement of Undisputed Facts filed on June
10, 2025 (DE 88). Plaintiff did not file an opposing statement of material facts as required by
Local Rule 56.1(a)(2). Accordingly, this Court views the facts in Defendants’ Statement of
Sheriff’s Office (“PBSO”) executed a federal arrest warrant issued for Plaintiff out of Oklahoma
(DE 88 ¶ 1). As part of the assignment to execute the arrest warrant, the Drug Enforcement Agency
(“DEA”) provided Defendants’ unit with intelligence, including Plaintiff’s criminal history and
that he resided as his mother’s apartment (id. ¶ 2). The DEA intelligence also contained Plaintiff’s

criminal history, which included a 2021 conviction for fleeing and attempting to elude law
enforcement (id. ¶ 3). Based on this information, the unit decided to engage Plaintiff when he was
inside his mother’s apartment to avoid him fleeing (id.).
In the early morning of September 27, 2022, Defendants’ unit conducted surveillance of
Plaintiff’s mother’s apartment complex and recognized a vehicle belonging to Plaintiff pulling into
the parking lot (id.) Plaintiff was observed exiting the vehicle (id.). Upon exiting the vehicle,
Plaintiff recognized the police presence and understood law enforcement was there for him (id. ¶
7). After Plaintiff went into the apartment, the PBSO unit, wearing protective vests that identified
themselves as law enforcement, proceeded to the apartment to execute the arrest warrant (id. ¶¶ 8-
9). Once they arrived at the apartment door, Defendants used a Long-Range Acoustics Device

(“LRAD”) system to announce themselves as PBSO and knocked on the door several times,
ordering Plaintiff to the front door (id. ¶ 10).
Several minutes passed and additional announcements were made without a response from
Plaintiff (id. ¶ 11). Equipped with a riot shield for protection, Defendant Warren went to the front
door to verify if someone was inside the apartment (id.). Plaintiff went to the patio of the apartment
and opened the shutters covering the screen, which had to be done if someone wanted to open the
patio door and leave from the back of the apartment (id. ¶ 12). Before the agents at the front of

Undisputed Facts as undisputed, except where otherwise noted. See Fed. R. Civ. P. 56(e)(2)
(explaining that when a party fails to properly address another party’s assertion of fact, a court
may consider that fact as undisputed).
the house announced themselves, two agents were positioned at the back of the apartment to
prevent any attempts by Plaintiff to flee (id. ¶14). The agents at the back of the apartment radioed
to Defendants at the front of the apartment that Plaintiff was trying to flee and ordered Plaintiff to
return to the front of the apartment and comply with the officers’ commands (id. ¶ 15). Plaintiff

went inside the apartment, and Plaintiff’s mother answered the door (id. ¶ 16). Plaintiff’s mother
told him that the officers were looking for him, and he responded, “[O]h my god” (id. ¶¶ 17-18).
As the front door opened, Defendants observed Plaintiff inside the apartment, pacing back
and forth (id. ¶¶ 19-20). Based on their knowledge and experience as law enforcement officers,
Defendants perceived Plaintiff to appear nervous or in a fight or flight mode (id. ¶ 20). In response
to Defendants’ commands, Plaintiff did not immediately comply but instead, stated that he needed
to get a shirt (id. ¶ 21). Seeing this at the threshold of the front door, Defendants Warren and
Septien directly ordered Plaintiff to get on the floor; however, Plaintiff continued pacing and
muttered to himself (id. ¶ 22). After Plaintiff disregarded additional orders, Defendant Vitola gave
Defendant Warren the order to deploy the non-lethal 40mm projectile he was carrying (id. ¶ 23).

Plaintiff was struck once in the lower back, causing him to stop pacing (id. ¶¶ 23, 26). Plaintiff
testified that he was struck with the non-lethal projectile when he turned his head and asked to see
the warrant (id. ¶ 25).3 Plaintiff then proceeded to comply with the commands and got on the floor,
which allowed Defendants to enter the apartment and handcuff Plaintiff (id. ¶ 26).
While being escorted out of the apartment, Plaintiff did not appear to be seriously injured,
and as a precaution, was transported to Wellington Regional Medical Center (id. ¶¶ 27-28). At the
medical center, Plaintiff was examined, and it was determined he suffered a lumbar contusion (id.

3 Plaintiff stated that the night before Defendants executed the warrant, he smoked marijuana and
did not remember what he was doing between 10:00 pm and 3:00 am on the morning of September
27, 2022 (id. ¶ 5).
¶ 28). Plaintiff never received any confirmation from a doctor that his injury was anything more
than a contusion or swelling (id. ¶ 29). In the following weeks, medical records from the jail
demonstrate Plaintiff was treated for minor back pain (id. ¶ 30). As of October 11, 2022, before
Plaintiff was transported to Oklahoma, he only complained about pre-exisitng injuries, namely

issues with his left toe, which were unrelated to the September 27, 2022 arrest (id.). Subsequently,
Plaintiff was charged with resisting arrest without violence by the State Attorney’s Office based
on his conduct on September 27, 2022 (id. ¶ 38). Upon his conviction of federal drug charges in
Oklahoma, the State Attorney’s Office dropped the charge for resisting arrest without violence as
part of a deferred prosecution agreement (id. ¶ 39).4
On September 10, 2024, Plaintiff filed his Second Amended Complaint where he asserted
a claim under Title 42, United States Code, Section 1983 for Defendants’ unlawful and excessive
use of force (DE 44 ¶¶ 11-16). On November 20, 2024, the Court screened the Second Amended
Complaint and denied Defendants’ Motion to Dismiss (DE 60). The Court noted that the Second
Amended Complaint stated an excessive force claim and “survives screening against the arresting

officers” (id. at 2). The Court further recognized that Plaintiff “lump[s] the actions of all of the
Defendants together, and it is unclear . . . which officer (or officers) shot the Plaintiff [and] . . .
which officers are alleged to have merely encouraged the shooting, or to have failed protect the
Plaintiff from the shooting . . . .” (id. at 3).
II. LEGAL STANDARD

“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

4 In the statement of undisputed facts, Defendants provide a detailed background of Plaintiff’s
failure to comply with discovery obligations and the Court’s Orders requiring Plaintiff to provide
discovery responses and initial disclosures, which Plaintiff has not done (DE 88 ¶¶ 31-36, 42-44).
Civ. P. 56(a). “[S]ummary judgment is proper ‘if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.’” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citation omitted). “[S]ummary

judgment will not lie if the dispute about a material fact is ‘genuine,’ that is, if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). “[A]ll inferences drawn from the evidence must be viewed in the
light most favorable to the non-moving party. . . . A court need not permit a case to go to a jury,
however, when the inferences that are drawn from the evidence, and upon which the non-movant
relies, are ‘implausible.’” Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742-43 (11th Cir.
1996) (citations omitted). “If reasonable minds could differ on the inferences arising from
undisputed facts, then a court should deny summary judgment.” Allen v. Tyson Foods, Inc., 121
F.3d 642, 646 (11th Cir. 1997) (citation omitted).
III. DISCUSSION
Defendants advance two primary arguments as to why summary judgment is appropriate.

First, Defendants contend that their use of a non-lethal projectile while they were executing an
arrest warrant did not constitute excessive force under the circumstances (DE 89 at 8-11).
According to Defendants, despite repeated commands for Plaintiff to surrender himself at the front
door, Plaintiff opened the shutters covering the back patio, which was reasonably perceived as an
attempt to escape (id. at 8-9). Defendants maintain that even after Plaintiff’s mother opened the
front door, Defendants ordered Plaintiff to exit the apartment through the front door (id.). Instead
of complying, Plaintiff appeared as if he was panicking and becoming increasingly nervous (id.).
Defendants suggest that under the totality of the circumstances, they made the split-second
decision to use the non-lethal 40mm projectile to prevent further escalation (id.). In Defendants’
view, “[a] reasonable officer presented with the same circumstances could reasonably believe
Plaintiff was attempting to escape and was resisting” (id. at 10). Additionally, Defendants argue
that Plaintiff’s lack of any serious injury from this incident shows that Defendants’ actions were
reasonable (id. at 11). Next, Defendants maintain they are entitled to qualified immunity, because

no reasonable officer in the same situation would conclude Defendants’ use of non-lethal force
violated Plaintiff’s constitutional rights (id. at 11-12).
In opposition to the Motion, Plaintiff argues that Defendants’ force was excessive as “the
defendant [warren], shot [P]laintiff in the [b]ack with a 40mm projectile at close range” (DE 106
at 4). Plaintiff contends that he was shot “while he had his hands in the air and was not posing any
imminent threat to the safety of the defendant[s]” (id. at 4-5). Plaintiff also argues Defendants’
force was excessive as “there’s no direct evidence in the objective record evidence, [b]efore this
Court, that the defendant ‘warren’ had reason to believe that plaintiff would attempt to escape or
flee” (id. at 5). In Plaintiff’s view, his actions and conduct do not lawfully justify Defendants
shooting him in the back, and as a result, Defendants “use of deadly force” was objectively

unreasonable and violated Plaintiff’s Fourth Amendment rights (id. at 5-6). Regarding qualified
immunity, Plaintiff argues that Defendants’ conduct constituted a violation of a clearly established
constitutional right, because Defendant Warren knew or should have known what he was doing
was wrong (id. at 6).
A. Legal Standards for Qualified Immunity and Excessive Use of Force
“Qualified immunity shields government officials from liability for civil damages for torts
committed while performing discretionary duties unless their conduct violates a clearly established
statutory or constitutional right.” Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008) (citing
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “To even be potentially eligible for summary
judgment due to qualified immunity, the official must have been engaged in a ‘discretionary
function’ when he performed the acts of which the plaintiff complains.” Holloman ex rel.
Holloman v. Harland, 370 F.3d 1252, 1263-64 (11th Cir. 2004) (citation omitted). “Once an
officer raises the defense of qualified immunity, the plaintiff bears the burden to show that the
officer is not entitled to it.” Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010).

“[W]e are obliged to grant qualified immunity unless the plaintiff can demonstrate: first,
that the facts viewed in the light most favorable to the plaintiff establish a constitutional violation
by the officers, and, second, that it was clearly established at the time of the incident that the
actions of the defendant were unconstitutional.” McCullough v. Antolini, 559 F.3d 1201, 1205
(11th Cir. 2009).5 “A clearly established right is one that is ‘sufficiently clear that every reasonable
official would have understood that what he is doing violates that right.’” Mullenix v. Luna, 577
U.S. 7, 11 (2015) (citation omitted). “The essential question here is whether the officer had ‘fair
warning’ that his actions were unconstitutional. This analysis is primarily conducted by looking
at the binding case law of the Supreme Court and this circuit.” Charles v. Johnson, 18 F.4th 686,
698 (11th Cir. 2021) (citations omitted).

Courts review “the constitutionality of the challenged application of force solely by
reference to the Fourth Amendment’s prohibition against unreasonable seizures of the person,
holding that the reasonableness of a particular seizure depends not only on when it is made, but
also on how it is carried out.” Graham v. Connor, 490 U.S. 386, 395 (1989) (citations omitted and
emphasis original). “[T]he ‘reasonableness’ inquiry in an excessive force case is an objective one:
the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and
circumstances confronting them, without regard to their underlying intent or motivation.” Id. at

5 District courts are permitted to exercise discretion in deciding which prong of this inquiry to
address first. McCullough, 559 F.3d at 1205.
397 (citation omitted). “In this respect, ‘[t]he “reasonableness” of a particular use of force must
be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.’” Crenshaw v. Lister, 556 F.3d 1283, 1290 (11th Cir. 2009) (citation omitted).
“In determining the reasonableness of the force applied, we 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.” McCullough, 559 F.3d at 1206. “The Supreme Court has analyzed a
non-exhaustive list of factors, such as ‘the severity of the crime at issue, 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.’” Charles v. Johnson, 18 F.4th 686, 699 (11th Cir. 2021)
(quoting Graham, 490 U.S. at 396). “Other considerations include ‘the need for the application of
force, the relationship between the need and the amount of force used, and the extent of the injury
inflicted.’” Hall v. McGhee, 762 F. App’x 837, 841 (11th Cir. 2019) (quoting Saunders v. Duke,
766 F.3d 1262, 1267 (11th Cir. 2014)). “The calculus of reasonableness must embody allowance

for the fact that police officers are often forced to make split-second judgments—in circumstances
that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a
particular situation.” Graham, 490 U.S. at 396-97.
Here, it is undisputed that Defendants were acting within their discretionary authority when
they allegedly used excessive force in effectuating the arrest of Plaintiff. See Lee v. Ferraro, 284
F.3d 1188, 1194 (11th Cir. 2002) (“In this case, there can be no doubt that Ferraro was acting in
his discretionary capacity when he arrested Lee.”); Brown, 608 F.3d at 741 (noting that the
plaintiffs conceded there was no dispute that the defendants were acting within their discretionary
function as law enforcement officers by making an arrest). The Court therefore turns to whether
Plaintiff has sufficiently established that Defendants violated his constitutional rights and whether
such violation was clearly established at the time of Plaintiff’s arrest.
B. Plaintiff’s Excessive Force Claim
Plaintiff argues that Defendants’ use of a single non-lethal 40mm projectile, which struck
Plaintiff in the back, was excessive force in violation of his constitutional rights. The undisputed
facts show that Defendants knew before they approached the apartment that Plaintiff had a criminal

conviction for fleeing and attempting to elude law enforcement (DE 88 ¶ 3). When law
enforcement arrived, Plaintiff “recognized that police were present at his mother’s apartment
complex[ and] understood that they were there for him . . . .” (id. ¶ 7). Nevertheless, Plaintiff
refused to comply with Defendants’ commands and instead, moved to the back of the apartment
where he opened the shutters covering the screen, which one must do to exit the back patio door
(id. ¶¶ 10-12). Other agents in the rear of the apartment informed Defendants about Plaintiff’s
activity, and when Plaintiff’s mother opened the apartment’s front door, Defendants could see
Plaintiff from the doorway (id. ¶¶ 14-15, 18-19). Instead of complying with Defendants’
commands to exit the front of the apartment, Plaintiff began to pace back and forth, and Defendants

thought he was in fight or flight mode (id. ¶ 20-22). Defendants did not know if there were
weapons in the apartment that Plaintiff could access (id. ¶ 22). After giving several orders with
which Plaintiff did not comply, Agent Warren deployed a single non-lethal projectile, striking
Plaintiff in the back, which allowed Defendants to place Plaintiff in handcuffs (id. ¶¶ 23, 25-26).
These facts, which Plaintiff has not rebutted, demonstrate that on September 27, 2022,
Defendants were confronted with Plaintiff, who tried to evade arrest, or at a minimum disregarded
multiple commands by Defendants throughout the encounter. Although he did not submit a
statement of material facts under Local Rule 56.1, Plaintiff claims that he disputes “whether there
was an exit in which Plaintiff could have escaped or attempted to flee” (DE 106 at 7). Plaintiff
further contends that Agent Warren “shot Plaintiff in the back with a 40mm projectile at close
range (approximately within 5 feet) in the back . . . while he had his hands in the air and was not
posing any imminent threat to safety of [Defendants] . . . and Plaintiff was not actively resisting
arrest – attempting to escape or flee . . .” (id. at 4-5). Defendants argue that due to Plaintiff’s lack

of compliance with the Rules, the Court should deem all Defendants’ facts as admitted and
disregard Plaintiff’s factual assertions in his opposition (DE 107 at 2-5).6 See Katchmore Luhrs,
LLC v. Allianz Glob. Corp. & Specialty, No. 15-CIV-23420, 2017 WL 201840, at *2 (S.D. Fla.
Jan. 18, 2017) (explaining that under Local Rule 56.1, the Court has authority to deem facts as
admitted when the plaintiff does not submit a competing statement of material facts). Even if
Plaintiff had raised these additional facts properly in a statement of material facts, it would not
alter the Court’s conclusion, as demonstrated below.
Turning to the Graham factors that courts implore to assess whether the use of force was
reasonable, the first factor looks to the severity of the crime at issue. This factor weighs in
Defendants’ favor. The September 27, 2022 arrest was predicated on a federal warrant out of

Oklahoma related to a federal drug offense, of which Plaintiff was subsequently convicted (DE 88
¶¶ 1, 39). Additionally, based on Plaintiff’s conduct on September 27, 2022, he was charged with
the separate offense of resisting arrest without violence by the State Attorney’s Office (id. ¶ 38).
Put differently, by the time force was used, Plaintiff could have been arrested for two crimes. See
Charles, 18 F.4th at 701 (“Two crimes were at issue by the time the taser was deployed: Charles

6 Defendants also point out that the Court previously warned Plaintiff about the requirements of
Local Rule 56.1 in its Order Setting Pretrial Deadlines, Order on Requirements, and Order of
Reference to Mediation. “Local Rule 56.1 requires a motion for summary judgment (and
opposition thereto) to be accompanied by a statement of material facts. The Rule also imposes
very specific and very detailed requirements on a statement of material facts. Because the Court
will strictly enforce the requirements of the Rule, the parties should carefully study the Rule to
ensure their filings are in full compliance” (DE 28 at 11-12).
had an outstanding warrant for his arrest, and he had already begun his active and loud obstruction
of the arrest. As established by his obstruction conviction, Charles was ‘offering or doing violence’
to one of the officers.”)
The second factor, whether the suspect poses an immediate threat to the safety of the

officers or others, also supports the use of force. Defendants observed that Plaintiff appeared
nervous and was pacing and muttering to himself, while claiming he needed to get a shirt (DE 88
¶¶ 20-21). Defendants were not inside the apartment and reasonably believed that Plaintiff might
be able to access a weapon or something that could harm them if Plaintiff retreated into areas of
the apartment that they could not see, given the circumstances (id. ¶ 22).
Lastly, pursuant to the third factor, even viewing the facts in the light most favorable to
Plaintiff, he was not compliant with Defendants’ orders on multiple occasions. As the scene
unfolded, Defendants repeatedly issued command after command, giving Plaintiff every
opportunity to surrender, but Plaintiff did not (id. ¶¶ 10-12, 15, 21-23). Defendants also knew
before attempting the arrest that Plaintiff had a history of fleeing from law enforcement (id. ¶ 3).

When Plaintiff opened the shutters at the back of the apartment, unit members told Defendants that
Plaintiff may be attempting to flee (id. ¶¶ 12, 15). After Plaintiff’s mother opened the door,
Defendants ordered Plaintiff on multiple occasions to exit the front of the apartment, which he did
not do (id. ¶¶ 21-23). These facts demonstrate that Plaintiff was actively evading arrest and refused
to listen to law enforcement commands at the time force was used. See Shadmani v. Barnes, No.
22-CIV-1008, 2024 WL 4476157, at *8 (M.D. Fla. Oct. 11, 2024) (finding that the third Graham
factor weighed in the officer’s favor when the plaintiff resisted arrest, failed to submit to
handcuffing, began to run away, and refused to place his hands behind his back when he was on
the ground).
Further, Plaintiff’s injury was relatively minor, as he suffered a contusion on his back, and
there is no evidence that he required further medical intervention besides treatment for the pain (id.
¶ 30). Even though the lack of a severe injury does not foreclose a finding of excessive force, the
extent of the injury inflicted can inform the relationship between the need for force and the amount

used in response. See Hall, 762 F. App’x at 844 (cautioning district courts not to weigh the extent
of the injury too heavily). More importantly, the timing of the force in this case – that is, before
Plaintiff got on the floor, before Defendants entered the apartment, and before Plaintiff was placed
in handcuffs – further reinforces its application. See Sullenberger v. City of Coral Gables, No. 22-
CIV-21830, 2025 WL 101703, at *19 (S.D. Fla. Jan. 15, 2025) (“In deciding whether the Officers
deployed excessive force against [the arrestee], we’ll have to separate the force they used before
he was [subdued] from the force they employed after he was subdued . . . The latitude a police
officer enjoys in using force to effectuate a lawful arrest turns largely on this question of timing.”
(citations omitted)); see also Saunders v. Duke, 766 F.3d 1262, 1265 (11th Cir. 2014) (“We have

repeatedly ruled that a police officer violates the Fourth Amendment, and is denied qualified
immunity, if he or she uses gratuitous and excessive force against a suspect who is under control,
not resisting, and obeying commands.”). There is no dispute, even in Plaintiff’s version of events,
that Defendants struck him with the non-lethal projectile before he was under control, in handcuffs,
or subdued on the ground. To the contrary, “[o]nce struck, [Plaintiff] ceased pacing back and forth,
and after a few seconds got on the floor and complied with [Defendants’] command . . .” (DE 88
¶ 26).
As a result, it was objectively reasonable for Defendants to subdue Plaintiff with a non-
lethal 40mm projectile that left Plaintiff’s lower back bruised, considering the situation and the
information Defendants had available at the time. A review of excessive force cases in this Circuit
does not dictate a different result. See e.g., Crenshaw, 556 F.3d at, 1292 (finding no excessive
force when the plaintiff received thirty-one dog bites after he fled from police after committing
two armed robberies); Baker v. City of Madison, Alabama, 67 F.4th 1268, 1281 (11th Cir. 2023)
(finding that the officer’s single use of a taser on the plaintiff was objectively reasonable as the

plaintiff repeatedly ignored instructions from the officer and paramedics); Zivojinovich v. Barner,
525 F.3d 1059, 1073 (11th Cir. 2008) (“We have previously held that 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.” (citation
omitted)). Therefore, Defendants used reasonable force based on the Graham factors and the
totality of the circumstances with which they were faced.
C. Defendants Are Entitled to Qualified Immunity
“Qualified immunity applies unless the application of the reasonable officer standard
would ‘inevitably lead every reasonable officer to conclude the force was unlawful.’” Hall, 762
F. App’x at 843 (citation omitted). “[T]he use of force is an expected, necessary part of a law
enforcement officer’s task of subduing and securing individuals suspected of committing crimes.”

Lee, 284 F.3d at 1200. By repeatedly commanding Plaintiff to go to the front door to be arrested,
Defendants attempted multiple times to secure Plaintiff’s arrest without incident. Plaintiff’s
repeated refusal to follow Defendants’ instructions, along with the other attendant circumstances,
caused Defendants to deploy a single, non-lethal projectile, which stuck Plaintiff in the back. No
further projectiles were used, and there are no allegations that Plaintiff was the subject of any
additional force. Even when viewing the facts in the light most favorable to Plaintiff, accepting
his alleged facts, and drawing all reasonable inferences in his favor, the circumstances would cause
any reasonable officer to conclude that the force used, specifically a single, non-lethal projectile
to the back, was reasonable and lawful.
Because Defendants were acting within their discretionary authority, the burden shifted to
Plaintiff to show Defendants violated a constitutional right that was clearly established, but
Plaintiff has not met that burden. Plaintiff argues in a conclusory fashion that “[h]ere the defendant
‘warren[’s]’ conduct, was nothing more than a deliberate intentional act to do wrong, when the

defendant “warren” knew or should have known what he was about to do was wrong” (DE 106 at
6). Yet, claiming there is a dispute of fact does not actually create one to preclude summary
judgment. See Latele Television, C.A. v. Telemundo Commc’ns Grp., LLC, No. 12-CIV-22539,
2014 WL 7272974, at *7 (S.D. Fla. Dec. 18, 2014) (“Latele cannot avoid summary judgment by
simply saying the facts are in dispute . . . .”); see also Shiver v. Chertoff, 549 F.3d 1342, 1343
(11th Cir. 2008) (“Speculation does not create a genuine issue of fact.” (citation omitted and
emphasis original). The circumstances surrounding Plaintiff’s arrest would not lead a reasonable
officer in the same position to conclude that using a non-lethal projectile to effectuate the arrest
was excessive and unlawful. See Floyd v. Corder, 426 F. App’x 790, 792 (11th Cir. 2011)
(explaining that even if using a taser three times during an arrest was excessive force, the officer

would still be entitled to qualified immunity) (per curiam).
Plaintiff’s reliance on Mobley v. Palm Beach County Sheriff’s Department is unavailing.
783 F.3d 1347 (11th Cir. 2015). In Mobley, the plaintiff dragged a police officer with his car,
struck him with the car, and then led police on a vehicle chase that ended with the plaintiff wading
into the middle of a pond. Id. at 1350-51. After the plaintiff waded out of the pond towards police,
the arresting officers “grabbed him by the hair and shoved him to the ground, pinning him there
and ordering him to surrender his hands to be cuffed. While [the plaintiff] was on the ground, the
officers struck and kicked him, including in the face.” Id. at 1351. The plaintiff was left with a
broken nose, cuts and bruises, broken front teeth, and was later diagnosed with post-traumatic
stress disorder and began suffering seizures. Id. The Eleventh Circuit found that the arresting
officers were entitled to qualified immunity, because their force was reasonable, as they knew the
plaintiff struck a police officer with his truck, led law enforcement on a high-speed chase, and
waded into the middle of a pond to evade arrest. Id. at 1355-56. The amount of force used in this

case is noticeably less than Mobley, which the Eleventh Circuit upheld, given the escalating
circumstances there. Rather, like Mobley, Plaintiff “has not pointed to any circumstances before
he quit resisting and was handcuffed that show the force applied against him was objectively
unreasonable.” Id. at 1356. In sum, Plaintiff has not satisfied his burden, and Defendants are
entitled to summary judgment based on qualified immunity.
Considering that Defendant Warren did not use excessive force in striking Plaintiff with
the non-lethal projectile in the back, “[s]ummary judgment is also appropriate for the remaining
officers . . . because a police officer has no duty to intervene in another officer’s use of force when
that use of force is not excessive.” Id. at 1357. Additionally, Plaintiff did not plead any claim for
supervisory liability against Defendant Vitola. Even if Plaintiff had, summary judgment would

still be appropriate in Defendants’ favor, as no excessive force was used. See Ewing v. Taylor, No.
23-CIV-1304, 2025 WL 2626738, at *7 (N.D. Ga. Sept. 10, 2025) (“[W]here there is no underlying
constitutional violation, there can be no supervisory liability.”).7
IV. CONCLUSION
Based on the foregoing, it is respectfully recommended that Defendants’ Motion for
Summary Judgment (DE 89) be GRANTED and that final judgment be entered in favor of

7 Defendants also argue that their Motion for Summary Judgment should be granted, because
“despite being ordered by the Court in December 2024 [to produce initial disclosures], Plaintiff
never provided his initial disclosures,” and as a sanction, Plaintiff’s claims should be dismissed
(DE 89 at 13-14). Since it is respectfully recommended that the Court grant Defendants’ Motion
for Summary Judgment for the reasons stated herein, the undersigned does not reach this argument.
Defendants Agent Steven Septien, Agent Eddie Warren, and Sergent David Vitola based on their
qualified immunity for Plaintiff's excessive force claim.
OBJECTIONS
The Parties will have fourteen (14) days from the date of this Report and Recommendation
to file written objections, if any, with the Honorable William P. Dimitrouleas, United States
District Judge. Failure to file objections timely shall bar the parties from a de novo determination
by the District Judge of an issue covered in this Report and shall bar the parties from attacking on
appeal unobjected-to factual and legal conclusions contained in this Report, except upon grounds
of plain error, if necessary, in the interest of Justice. See 28 U.S.C. § 636(b)(1); Thomas v. Arn,
474 U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989); 11th Cir. R. 3-
1 (2016).
RESPECTFULLY SUBMITTED in Chambers in Miami, Florida on this 4th day of
February, 2026. CN ry Cc)
□□□□□□□□□□□□□□□□□□□□□
UNITED STATES MAGISTRATE JUDGE
CC: Pro se Plaintiff Adonis Batista
All Counsel of Record

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11252112. Public record. Not legal advice.