Petition for Writ of Certiorari — Matthew Reid Hinson, Petitioner v. R. A. Bias, et al.
Supreme Court briefJan 10, 2020
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APPENDIX
TABLE OF APPENDICES
Appendix A
Opinion of the United States Court of
Appeals for the Eleventh Circuit,
Hinson v. Bias, et al., No. 16-14112
(June 14, 2019) ............................................ App-1
Appendix B
Opinion and Order of the United States
District Court for the Middle District of
Florida, Hinson v. Bias, et al.,
No. 3:14-cv-1217-J-25MCR,
Denying Summary Judgment
(May 24, 2016) ........................................... App-37
Appendix C
Order of the United States Court of
Appeals for the Eleventh Circuit
Denying Rehearing and Rehearing
En Banc, Hinson v. Bias, et al.,
No. 16-14112-GG (August 14, 2019) ......... App-72
App-1
Appendix A
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________
No. 16-14112
________________
D.C. Docket No. 3:14-cv-02127-HLA-MCR
MATTHEW REID HINSON,
v.
Plaintiff-Appellee,
R.A. BIAS, OFFICER #61580,
B.K. KREMLER, OFFICER #64398,
S.T. WILLIAMS, OFFICER #64402,
Z.M. ANDERSON, OFFICER #67377,
ROB SCHOONOVER, OFFICER #6434,
Defendants-Appellants.
________________
Appeal from the United States District Court
for the Middle District of Florida
________________
(June 14, 2019)
________________
[PUBLISH]
Before JORDAN, ROSENBAUM, and DUBINA,
Circuit Judges.
ROSENBAUM, Circuit Judge:
For no apparent reason, Plaintiff-Appellee
Matthew Hinson stabbed a man he did not know in the
neck during a chance encounter at a pub. As the man
laid on the ground bleeding to death, Hinson calmly
App-2
walked to the parking garage, got into his truck, and
began to leave. But at the garage’s checkout booth,
Defendants-Appellants Jacksonville Sheriff’s Office
Officers caught up with him.
In this 28 U.S.C. § 1983 action, Hinson alleges
that the Officers violated his Fourth Amendment
rights by employing excessive force in effecting his
arrest. He also asserts that the Officers transgressed
his Eighth Amendment rights by being deliberately
indifferent to medical needs he purportedly
experienced as a result of the force inflicted during the
arrest.
In support of his claims, Hinson relies on
surveillance footage of the parking area, as well as his
father’s sworn interpretation of that same
surveillance recording. For their part, the Officers
deny that they used excessive force, and they support
their version of the facts with their sworn statements
recounting what happened during the arrest. In an
interesting twist, they also rely on the same video
recording as Hinson, in addition to Hinson’s medical
records.
But what looked at first like a tale of two stories
turns out to be but a single one, uncontradicted in any
material way by any admissible evidence in this case.
And under that single rendition of the facts, the
Officers here did not use excessive force to effect
Hinson’s arrest. Nor were they deliberately indifferent
to Hinson’s medical needs. For these reasons, the
Officers are entitled to qualified immunity, and we
vacate the district court’s contrary conclusion.
App-3
I. Facts
A. The Stabbing
Though the day ended tragically, October 6, 2012,
started out usually enough for Plaintiff-Appellee
Matthew Hinson. He completed his shift as a cook at
the Hyatt Regency in downtown Jacksonville at
around 6:00 or 7:00 p.m. Then he went home, where
his wife was, and watched the end of a football game.
After that, Hinson went for a few hours to his friend’s
house down the road, where he had several beers.
While he was there, Hinson’s wife, who had since gone
to Fionn MacCool’s Irish Pub and Restaurant at the
Jacksonville Landing, started calling and texting him
to pick her up.
Hinson eventually left his friend’s home and went
over to Fionn MacCool’s. But when he arrived at the
restaurant, his wife was not yet ready to leave. So
Hinson took a seat at the bar and had another beer or
two.
At some point, Hinson encountered Chris Pettry,
a man he had never previously met, in the restaurant.
The trigger, if any, for what occurred next is unclear:
Hinson grabbed his pocket knife, stabbed Pettry in the
neck, and inflicted a four-inch laceration wound on one
side of Pettry’s throat. Pettry died soon after, as a
result of this wound.
B. The Arrest
After stabbing Pettry, Hinson left Fionn
MacCool’s and headed for the parking garage. At the
garage, Hinson got into his truck and drove to the
checkout booth, where officers arrested him. Hinson
testified that he remembered nothing at all about his
App-4
arrest after he put his hands up in response to officers’
commands. So the sources of evidence concerning
what happened during the arrest consist solely of the
participating officers’ statements and video
surveillance footage. 1 We review them below.
1. The Officers’ Statements
Defendants-Appellants Jacksonville Sheriff’s
Office (“JSO”) Detective Z.M. Anderson and Officer
B.K. Kremler responded to the scene after learning of
the life-threatening stabbing. At the time, they knew
of the suspect’s description and whereabouts from a
witness. Anderson and Kremler caught up with the
suspect, who turned out to be Hinson, at the parking
garage around midnight, as Hinson sat in his truck
and tried to pay for his parking. According to
Anderson, when he and Kremler approached Hinson’s
truck with their guns drawn, the engine was still on.
Anderson saw Hinson, sitting in the truck. And he
noted that Hinson matched the description of the
suspect the officers had received.
Anderson and Kremler attested that Kremler
instructed Hinson to put his hands up where the
officers could see them. But, the officers stated,
James Hinson, Hinson’s father, also provided an affidavit
concerning the events of the arrest. But his statement was based
solely on his interpretation of the video surveillance footage. As
this evidence constitutes inadmissible hearsay, and the video
footage itself provides the best evidence of what is on the video
footage, we do not consider James Hinson’s affidavit. See Fed. R.
Civ. P. 56(c)(4) (“An affidavit or declaration used to support or
oppose a motion [for summary judgment] must be made on
personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to
testify on the matters stated.”).
1
App-5
Hinson did not comply. So Kremler continued to tell
Hinson to put his hands up. Eventually, Hinson raised
his left hand, but Kremler was unable to see Hinson’s
other hand. Finally, the officers reported, Hinson put
both hands up.
While this was occurring, two more JSO officers
arrived on the scene in response to a radio dispatch
about the life-threatening stabbing. DefendantAppellant Officer S.T. Williams first went to Fionn
MacCool’s, where he saw the victim lying in a pool of
his own blood, apparently dead. Then Williams
learned that Anderson and Kremler had found
Hinson. So he went to the parking garage to see if he
could be of assistance.
There, Williams met up with DefendantAppellant Officer R.A. Bias, who had arrived at the
garage and had run to the driver’s door of Hinson’s
truck. Bias, too, drew his gun and pointed it at Hinson.
He then commanded Hinson to keep his hands up and
get out of the truck, facing away from Bias (for officer
safety). Hinson did not respond, so Bias continued
instructing Hinson to leave the truck. At some point,
Bias opened the truck’s door, and after some time
passed, Hinson finally put one leg on the ground. Bias
took Hinson’s hand and extracted him from the truck.
As Bias and Hinson left the confined area between
the truck and the checkout booth, Bias told Hinson to
turn around and face away from him, so Bias could
handcuff Hinson. Instead, Hinson continued moving
towards Bias. Again, Bias commanded Hinson to stop
and turn around. But Hinson again did not comply.
Anderson, who could see this occurring, attested
that he then became concerned for Bias’s safety, since
App-6
Bias no longer had his weapon drawn, Bias was
significantly smaller in stature than Hinson, and the
officers had no way of knowing whether Hinson was
armed. So Anderson grabbed Hinson’s wrist and
shoulder and performed a police maneuver known as
a “straight arm bar takedown.” As a result, Hinson
was in a prone position on the ground, next to the
checkout booth.
Once Hinson was down, Bias stated, Bias
attempted to handcuff him. Towards this end, Bias
repeatedly instructed Hinson, whose hands were
under him, to release his hands. But according to the
officers, Hinson would not cooperate. Instead, Hinson
struggled to keep his hands underneath his body.
Bias started to become concerned that Hinson
might be trying to reach a weapon while his hands
were under his body. So to induce compliance with
Bias’s directive to Hinson to produce his hands for
handcuffing, Bias made “five or six hammer strikes” 2
to Hinson’s upper-mid back area. In addition,
Anderson gave one “pain compliance strike to Hinson’s
face” to obtain Hinson’s cooperation. Hinson then
According to Bias, a hammer strike is a JSO-sanctioned
striking technique used “to distract, incapacitate, or gain control
of a subject who is on the ground and physically resisting police
efforts to secure his hands and/or refusing to comply with lawful
police commands such as ‘put your hands behind your back.’”
Bias explained that JSO officers are trained to stop applying
striking techniques once the subject is secured or ceases
resisting. Bias further asserted that such striking techniques are
“in line with generally-recognized and accepted police practice in
the United States and the State of Florida.”
2
App-7
released his hands from underneath his body, and
Bias handcuffed him.
The officers who viewed the arrest stated that
once Hinson was handcuffed, no officer used further
force against him, and all the officers denied using or
seeing any other officer use a flashlight to administer
the strikes or otherwise to hit Hinson. Nevertheless,
Anderson, Bias, and Williams conceded that Hinson
sustained abrasions to the skin on his left cheek, eye,
and forehead, from the pavement, as a result of the
officers’ arrest efforts.
After Hinson was handcuffed, JSO Sergeant
William Janes arrived on the scene. Janes attempted
to get Hinson to stand, so he could place Hinson in his
patrol car. According to Janes, however, Hinson
refused to comply. Instead, Hinson fell to the ground.
So Janes picked up Hinson, and Hinson then walked
to Janes’s patrol car on his own. Kremler and Williams
attested that they saw these events, and while they
were occurring, Hinson never lost consciousness.
Along with Anderson, Bias, and Janes, Kremler and
Williams also insisted that Hinson never requested
medical attention and that they never perceived him
as requiring it.
After officers secured Hinson in the patrol car,
they found a large knife wedged between the driver’s
seat and the console inside Hinson’s truck. Another
knife laid on the ground by the driver’s door. JSO later
determined that the knife found on the ground next to
the truck was the knife used to cut Pettry’s throat
earlier that evening.
Janes drove Hinson to the Police Memorial
Building, where Janes turned Hinson over to homicide
App-8
detectives. At no point during the arrest was
Defendant-Appellant JSO Lieutenant Rob Schoonover
present.
2. The Video Recordings
The surveillance video taken at the checkout
booth does not include audio. But to the extent that its
limited view allows, 3 the video is, for the most part,
not inconsistent with the officers’ description of what
occurred during the arrest.
It shows that while Hinson was at the checkout
booth, Officers approached his truck with guns drawn
and pointed them at Hinson in his truck. Roughly
seven seconds later—enough time for officers to
repeatedly instruct Hinson to put his hands up—
Hinson put his left hand up and outside his truck’s
window.
At that time, Hinson dropped out the window
what later turned out to be a knife. None of the
Officers reported seeing Hinson drop the knife out the
window. Anderson, however, attested that he saw a
knife fall from Hinson’s lap to the ground, when
Hinson left the truck. Since only one knife was
3 For purposes of viewing the extraction of Hinson from his
truck, perhaps the most useful angle of the surveillance video
captured a bird’s eye view of a portion of the driver’s side of
Hinson’s truck and the edge of the checkout booth. The angle
shows the officers’ drawn guns in the opening between the truck
and the checkout booth, but the view inside the truck is extremely
limited because the video was positioned over the top of the
truck’s roof, so only a few inches of space inside the vehicle are
visible. Because the surveillance system was equipped with a
motion sensor that regulated when video was recorded, the
surveillance video is not continuous and uninterrupted from
every angle throughout the arrest.
App-9
recovered from the ground, the knife Anderson
purported to see fall from Hinson’s lap must have been
the knife that Hinson actually dropped out the
window. This is the one inconsistency between the
video footage and the Officers’ testimony that our
review of the evidence reveals. As we discuss later,
though, it does not concern a matter that is material
to the granting of summary judgment here.
After Hinson dropped the knife out the window of
his truck, he held his left hand up for about twelve
seconds before reaching that hand back into the truck
and out of the Officers’ views. A couple of seconds
later, Hinson again put his left hand outside the
driver’s window of his truck. Seven seconds after that,
Hinson put both hands up and outside the driver’s
window. Again, these intervals would have permitted
sufficient time for the Officers to have repeatedly
instructed Hinson to put his hands up.
Roughly another thirty seconds passed before an
officer opened the truck’s door. This period also was
more than enough time for Officers to have repeatedly
instructed Hinson to leave the truck. Then another
eight seconds went by, and Hinson put one foot outside
the truck. After seven more seconds, an officer took
Hinson’s arm and pulled him from the truck. During
the next several seconds, Hinson moved back in the
direction of the officer who had his arm.
Suddenly, another Officer moved close to Hinson
and took him down to the ground. 4 Once Hinson was
4 The camera angle designated “overall” offers the best angle of
footage for the events after the Officers removed Hinson from his
truck. That is wide-angle footage taken from about 47 feet away
from where the incident occurred. Unfortunately, however, the
App-10
on the ground facedown, an Officer straddled Hinson’s
back and appeared to reach down by the side of
Hinson’s body in a manner that would be consistent
with trying to find Hinson’s arms so he could cuff
Hinson.
About seven seconds later, the same Officer
struck Hinson on the back. Two seconds after that, the
Officer again struck Hinson on the back. Another
second went by, and the Officer struck Hinson on the
back a third time. Then, a second later, another Officer
struck Hinson in an area consistent with where
Hinson’s head would have been, had the view not been
obstructed. Finally, after another second, the first
Officer hit Hinson on the back a fourth and fifth time.
In the next second, that Officer began to sit up and
to work with his hands behind Hinson’s back. For the
next about twenty seconds, the Officer engaged in
activity consistent with cuffing Hinson, though the
video is of such poor quality that even after reviewing
it frame by frame, we cannot confirm with certainty
precisely what the officer was doing. Nevertheless, the
recording reflects nothing inconsistent with the
Officers’ statements concerning Hinson’s takedown
and cuffing, and it does not show that any Officer used
a flashlight to hit Hinson.
events after Hinson was taken to the ground occurred in large
part behind what appears to be a two-to-three-foot sign resting
on the ground. In addition, because the camera filmed only when
triggered by the motion sensor, the video is interrupted by
periods where no filming occurred. As a result of these
circumstances, it is difficult to discern much detail from the video
footage.
App-11
A little while after Hinson was cuffed, another
Officer arrived and stood Hinson up. Hinson then fell
down. While Hinson was on the ground, the Officer
who had stood Hinson up used his foot to apparently
tap Hinson’s back. About nine seconds after Hinson
fell to the ground, two Officers stood Hinson up again
and placed him in the patrol car.
3. Hinson’s Lack of Memory
As we have noted, Hinson repeatedly insisted at
his deposition that he remembered absolutely nothing
about his arrest, from the time that he put his hands
up while sitting in his truck until he was in the back
of the patrol car. In particular, Hinson denied having
any memory concerning (1) the Officers’ alleged
instructions to him to open his door and leave the
truck; (2) how he got out of the truck; (3) how
handcuffs were put on him; (4) being struck in any
way by any officer; (5) whether he resisted arrest in
any way after he put his hands in the air; (6) what he
did once he was prone on the ground after the
takedown; (7) whether he offered his hands for
handcuffing; and (8) walking to the patrol car. He
further testified that even before he put his hands up,
he could not understand what the Officers were saying
to him. Finally, he explained that his “entire case rests
on” the arrest video.
C. The Officers’ Interview of Hinson
At the Police Memorial Building, JSO Detectives
James Childers and Kevin Munger interviewed
App-12
Hinson. The evidence from the Officers’ interviews 5 of
Hinson comes from their sworn declarations, the
sworn declaration of Schoonover, and a video
recording of the interview. In addition, we recount
what Hinson testified to concerning how his wounds
felt during the interviews.
1. The Officers’ Statements
We begin with the Officers’ statements. Both
Munger and Childers attested that though they
observed abrasions to the left side of Hinson’s face,
Hinson did not appear to them at any time to be in
distress or in need of immediate medical treatment. As
Childers described the abrasions, they were “road[]
rash,” and they were not bleeding when he saw
Hinson. Childers also asserted that Hinson never
requested medical attention or claimed he was in pain
during Childers’s contacts with Hinson.
Schoonover, who supervised Childers and
Munger, stated that he saw Hinson in the interview
room where Munger and Childers were interviewing
him. After noticing “minor abrasions” on Hinson’s
face, Schoonover asked the sergeant who was present
about them. The sergeant advised Schoonover that
Hinson was asked about his facial wounds and had
responded that he was “okay.” Schoonover explained
that he then watched portions of Hinson’s interview,
and Hinson neither appeared to be in pain nor
requested medical attention during the parts
Schoonover saw.
5 The Officers interviewed Hinson twice. After Hinson’s first
interview had ended, Hinson asked to speak further with the
Officers, so a second interview occurred.
App-13
2. The Video Recording of the Interviews
During the interviews, Hinson and the detectives
discussed the abrasions on Hinson’s face, though
Hinson never complained that he was in pain or asked
for medical attention. Childers also asked Hinson
whether he was “all right,” and Hinson responded that
he was.
At some point, Hinson’s wife was permitted to
visit with him. During that time, the two discussed,
among other things, the abrasions on Hinson’s face.
Hinson’s wife repeatedly asked Hinson whether he
was “okay.” Despite these topics, Hinson never said he
was not physically alright, never asked his wife for
medical assistance, and never complained that he was
in pain.
Our review of the video recordings confirmed that
Hinson suffered abrasions to the left side of his face,
though the wounds did not appear to be actively
bleeding during the interviews. Nor did Hinson seem
to be in physical pain or discomfort at any point in the
interviews. Hinson also responded calmly and
coherently to questions Childers and Munger asked
him. At various times during the interview, Hinson
rubbed and picked at the abrasions on his face without
grimacing or displaying any pain. At other times,
Hinson put his head in his hands or on the table—his
abrasions making contact with both—and showed no
signs of discomfort. Even when Hinson’s wife met him
in the interview room and wiped the abrasions on his
face, Hinson did not react as if he were in pain or
required medical attention.
App-14
3. Hinson’s Testimony Concerning His Wounds
In contrast to his statements and conduct during
his interviews, at his deposition, Hinson testified that
during the interviews, he experienced “[a]ll types of
pain” to his face and head. More specifically, Hinson
claimed that he suffered “throbbing pain,” “sharp
pain,” and “dull pain” and that his face and head were
“sore to the touch.” He characterized his pain as a 6 or
7 on a scale of 1 to 10. But he expressly denied feeling
pain to any other parts of his body while he was in the
interview room.
D. Hinson’s Booking
When Hinson’s interviews concluded, Munger and
Childers took Hinson to the jail, where he was
admitted. According to Childers, admission to the jail
meant that the jail’s medical staff determined that
Hinson had no serious medical need. Had the medical
staff reached the contrary conclusion, Childers
explained, he would have been required to transport
Hinson to the hospital.
Jacqulyne Phillips, a Certified Medical Assistant
employed by the City of Jacksonville, was on duty at
the jail when Hinson arrived for his medical screening
on October 7, 2012. She created medical records of her
evaluation. These records indicate, “No trauma
identified.” They further describe “[w]ound[s]
observed” as follows: “[Hinson] has abrasions to his
face, they are minor and not bleeding at this time.
[Hinson] instructed to keep clean with soap and
water.” According to Phillips, Hinson denied having
any pain when she asked him. Phillips also attested
that Hinson did not appear to be in any pain. Overall,
Phillips determined that Hinson was “not in need of
App-15
urgent medical attention,” so she medically cleared
him for admission to the jail. Hinson’s jail medical
records do not indicate that he complained of or was
found to have suffered a concussion or any other type
of traumatic head or brain injury on October 7, 2012.
E. Other Evidence
After October 7, 2012, Hinson’s medical records
reflect that his next medical visit occurred eleven days
later, on October 18, when Hinson was given a
“multiphasic screening exam.” The record of that visit
shows that medical staff identified no significant
physical findings, including, among other things,
specifically with respect to “[i]nspection[s]” of Hinson’s
abdomen and musculoskeletal system and for skin
lesions. 6 Nor do Hinson’s jail medical records indicate
that he ever complained of any physical ailments that
could have been related to the events of his arrest. 7
And though Hinson did report on January 28, 2013,
that he was “HAVING SEVERE MANIC EPISODES
OF DEPRESSION/ANXIETY LEADING TO LOSS
OF APPETITE/SLEEP FOR 5-6 DAYS A WEEK,”
Hinson claimed in a February 5, 2013, medical visit to
address that condition that he suffered from posttraumatic stress disorder, which he attributed to his
prior Naval service. 8
6 The examining professional did describe Hinson’s mood and
affect as “[a]bnormal ([p]oor eye contact).”
7 Hinson did report a clearly unrelated physical ailment: on
April 3, 2013, and after that, he was treated for a break to bones
in his right hand, following a fight at the jail.
8 The records from that medical visit state that Hinson reported
“symptoms of mood[] swings and sleep disturbance since his
service time in the Navy” and that he advised the health
App-16
In addition to Hinson’s jail medical records, the
Officers also submitted a sworn declaration from
Valerie Rao, M.D. Dr. Rao, a medical doctor and boardcertified forensic pathologist, licensed by the State of
Florida, attested that, among other items, she
reviewed photographs of Hinson’s injuries taken
immediately after his arrest, Hinson’s booking
photographs, the video recording of Hinson’s JSO
interview, and Hinson’s jail medical records. Based on
her review, Dr. Rao opined that “the injuries sustained
by Hinson during the course of his arrest on 10/7/2012
(minor abrasions to the left side of his face) were
merely superficial and non-life threatening,” and they
“did not require medical attention.” She further
asserted that “[t]he abrasions [were] not consistent
with being punched, kicked, or beaten with a
flashlight or [with] knee strikes.”
Finally, we turn to Hinson’s deposition. During
his deposition, Hinson discussed his sense of hearing.
He explained that the Veterans Administration had
diagnosed him with hearing loss. According to Hinson,
he experienced hearing loss in both ears as a result of
his Naval service. Hinson noted that he had slept over
the torpedo tube, where “it was very loud, . . . one of
the loudest things that [he had] experienced
constantly.” In addition, Hinson complained of ringing
in his ears. And while Hinson was not willing to rule
professional at the jail that he was a “disabled veteran” and “fe[lt]
like people [were] plotting on [him] all the . . . time.” He explained
that he had witnessed “dramatic events and casualties, death,
suicides” during his time in the Navy. The records do not indicate
that he mentioned his October 7, 2012, arrest experience when
he discussed his mental-health concerns.
App-17
out other contributors to his hearing problems, he did
not identify any possible reasons for it other than his
Naval service.
II. Procedural History
Hinson filed a pro se action under 42 U.S.C.
§ 1983 against Bias, Anderson, Kremler, Williams,
and Schoonover (collectively, the “Officers”). In a
verified complaint, he alleged that the Officers each
violated his Fourth Amendment right against the use
of excessive force and his Eighth Amendment right to
be free from deliberate indifference to medical needs.
In support of his Fourth Amendment claim, as
relevant to Hinson’s appeal, Hinson alleged that Bias
removed him from his truck and “SLAMMED HIM ON
THE GROUND.” Compl. at 6. He further contended
that after the Officers handcuffed him, Bias and
Anderson “ASSAULT[ed] [him] FOR NO JUST
CAUSE.” Id. In particular, Hinson averred that they
“REPEATEDLY BEAT[] [him] WITH FLASHLIGHTS
AND KICKED [him] . . . WHILE [he was] IN
HANDCUFF[]S AND LAYING ON HIS STOMACH.”
Id. at 7. In addition, Hinson complained that Kremler
and Williams, who were present at the scene but not
participating in the alleged beating, failed to intervene
to stop it. Id. at 5. Despite these allegations, Hinson
conceded in the complaint that he “[did] NOT
REMEMBER
THE
MAJORITY
OF
THE
DEFENDANTS[‘] ASSAULT,” though he asserted
that circumstance was attributable to having been
“KNOCKED
UNCON[S]CIOUS
FROM
THE
DEFENDANTS[‘] EXCESSIVE USE OF FORCE.” Id.
at 7.
App-18
As a result of this alleged violation, Hinson
averred,
he
“SUFFERED
MULTIPLE
LACERATIONS, BRUISES AND SWELLING ON
THE SIDE OF HIS FACE AND UPPER PARTS OF
HIS BODY. [He] ALSO SUFFERED INJURIES TO
HIS EAR AND NOW HAS CHRONIC MIGRAINES
. . . .” Id.
As for Hinson’s Eighth Amendment claim, Hinson
asserted that he “WAS BLEEDING FROM THE SIDE
OF HIS FACE AND NEED[ed] MEDICAL
ATTENTION.” Id. According to the complaint, Hinson
“NEED[ed] OBVIOUS MEDICAL CARE.” Id. And
because he did not receive it, Hinson contended, he
“SUFFERED FURTHER INJURY AND PHYSICAL,
EMOTIONAL AND P[]SYCHOLOGICAL PAIN AND
INJURY.” Id.
As relief for these alleged violations, Hinson
sought, among other remedies, “A SUM TOTAL NO
LESS THAN 4.5 MILLION DOLLARS.” Id. at 9.
Following discovery, the Officers filed summaryjudgment motions, invoking qualified immunity. After
Hinson responded, the district court granted
Schoonover’s motion as it concerned Hinson’s Fourth
Amendment claim, since Schoonover was not present
for the arrest and therefore could not have intervened.
But the district court denied the Officers’ summaryjudgment motions in all other respects, concluding
that material issues of fact existed, so the Officers
were not entitled to qualified immunity.
The Officers now appeal.
App-19
III. Standard of Review
We review de novo district-court orders on
summary judgment, taking the facts in the best light
to the nonmoving party and drawing all reasonable
inferences in that party’s favor. Glasscox v. City of
Argo, 903 F.3d 1207, 1212 (11th Cir. 2018). But while
all reasonable inferences must be drawn in favor of the
nonmoving party, “an inference based on speculation
and conjecture is not reasonable.” Hammett v.
Paulding Cty., 875 F.3d 1036, 1049 (11th Cir. 2017)
(citation and internal quotation marks omitted).
Summary judgment should be granted only if the
evidence of record yields no genuine dispute of
material fact, and the moving party is entitled on the
undisputed material facts to judgment as a matter of
law. Fed. R. Civ. P. 56(a). Yet a “mere scintilla of
evidence” cannot suffice to create a genuine issue of
material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986). Rather, the nonmoving party must
present enough evidence to allow a jury to reasonably
find in its favor. Id.
When a party properly supports a motion for
summary judgment, the nonmoving party must come
forward with “concrete evidence from which a
reasonable juror could return a verdict in his favor.”
Id. at 256. It is not enough for the nonmoving party to
“merely assert[] that the jury might, and legally could,
disbelieve” the moving party’s evidence. Id. Instead,
the nonmoving party must present “affirmative
evidence” that would allow a reasonable jury to rule
for him. Id. at 257.
App-20
IV. Discussion
As we have noted, Hinson lodged a claim for
excessive force under the Fourth Amendment and a
claim for deliberate indifference to medical needs
under the Eighth Amendment against Defendant
Officers. In their motions for summary judgment,
Defendant Officers invoked qualified immunity.
The qualified-immunity doctrine seeks to balance
“the need to hold public officials accountable when
they exercise power irresponsibly and the need to
shield officials from harassment, distraction, and
liability when they perform their duties reasonably.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009). To
resolve this balance, the doctrine protects government
officials engaged in discretionary functions and sued
in their individual capacities unless they violate
“clearly established federal statutory or constitutional
rights of which a reasonable person would have
known.” Keating v. City of Miami, 598 F.3d 753, 762
(11th Cir. 2010) (quotation marks and brackets
omitted).
We have explained that qualified immunity
shields from liability “all but the plainly incompetent
or one who is knowingly violating the federal law.” Lee
v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)
(citation omitted). Nevertheless, the doctrine’s
protections do not cover an officer who “knew or
reasonably should have known” that his actions taken
under color of law would violate the plaintiff’s
constitutional rights. Harlow v. Fitzgerald, 457 U.S.
800, 815 (1982) (internal quotation marks and
alteration omitted).
App-21
To invoke qualified immunity, a public official
must first demonstrate that he was acting within the
scope of his or her discretionary authority. Maddox v.
Stephens, 727 F.3d 1109, 1120 (11th Cir. 2013). The
term “discretionary authority” covers “all actions of a
governmental official that (1) were undertaken
pursuant to the performance of his duties, and
(2) were within the scope of his authority.” Jordan v.
Doe, 38 F.3d 1559, 1566 (11th Cir. 1994) (internal
quotation marks omitted). Here, Defendant Officers
readily satisfied this requirement, as they undertook
all the challenged actions while on duty as police
officers conducting arrest and investigative functions.
Because Defendant Officers have established that
they were acting within the scope of their
discretionary authority, the burden shifts to Hinson to
demonstrate
that
qualified
immunity
is
inappropriate. See id. To do that, Hinson must show
that, when viewed in the light most favorable to him,
the facts demonstrate (1) that Defendant Officers
violated Hinson’s constitutional right and (2) that that
right was “clearly established . . . in light of the
specific context of the case, not as a broad general
proposition[,]” at the time of Defendant Officers’
actions. Saucier v. Katz, 533 U.S. 194, 201 (2001),
overruled in part on other grounds by Pearson, 555
U.S. 223. We may decide these issues in either order,
but to survive a qualified-immunity defense, Hinson
must satisfy both showings. Maddox, 727 F.3d at
1120-21 (citation omitted).
App-22
A. Defendant Officers are entitled to qualified
immunity on Hinson’s Fourth Amendment
excessive-force claim
We begin by considering whether the Officers
violated Hinson’s Fourth Amendment right to be free
from the use of excessive force. As relevant here, the
Fourth Amendment protects against “unreasonable
. . . seizures.” U.S. Const. amend. IV. The use of
excessive force in executing an arrest is a species of
unreasonable seizure, so the Fourth Amendment
prohibits it. See Lee, 284 F.3d at 1197.
Here, Hinson has challenged the actions of both
the Officers who participated in taking him to the
ground and striking him and the Officers who were
present but did not participate in the use of force. If
the participating Officers violated Hinson’s rights and
the non-participating Officers were in a position to
take reasonable steps to protect Hinson but did not,
the non-participating Officers are equally liable as the
participating ones, based on their nonfeasance.
Crenshaw v. Lister, 556 F.3d 1283m 1293-94 (11th Cir.
2009) (per curiam).
The
Fourth
Amendment’s
“objective
reasonableness” standard governs our inquiry.
Crenshaw, 556 F.3d at 1290 (citation omitted). Under
this standard, we must consider “whether the officer’s
conduct is objectively reasonable in light of the facts
confronting the officer.” Id. (quoting Vinyard v.
Wilson, 311 F.3d 1340, 1347 (11th Cir. 2002)) (internal
quotation marks omitted). When we conduct our
analysis, we must do so “from the perspective of a
reasonable officer on the scene, rather than with the
20/20 vision of hindsight,” id. (quoting Graham v.
App-23
Connor, 490 U.S. 386, 396 (1989)) (internal quotation
marks omitted), and we acknowledge that “the right
to make an arrest or investigatory stop necessarily
carries with it the right to use some degree of physical
coercion or threat thereof to effect it.” Graham, 490
U.S. at 396 (citation omitted).
In applying this standard, we carefully balance
“the nature and quality of the intrusion on the
individual’s Fourth Amendment interests against the
countervailing governmental interests at stake.”
Crenshaw, 556 F.3d at 1290 (quoting Graham, 490
U.S. at 396) (internal quotation marks omitted). We
have explained that “the amount of force used by an
officer in seizing and arresting a suspect must be
reasonably proportionate to the need for that force.”
Stephens v. DeGiovanni, 852 F.3d 1298, 1324 (11th
Cir. 2017) (cleaned up). Factors we account for in
making this assessment include (1) the severity of the
crime; (2) whether the individual “poses an immediate
threat to the safety of the officers or others,”
Crenshaw, 556 F.3d at 1290 (quoting Graham, 490
U.S.at 396)(quotation marks omitted);(3) whether the
individual actively resists or tries to evade arrest by
flight, id.; (4) the need for force to be applied; (5) the
amount of force applied in light of the nature of the
need; and (6) the severity of the injury. 9
9 At times in our caselaw, we have identified another factor:
whether officers applied force “in good faith or [rather did so]
maliciously and sadistically.” Hadley v. Gutierrez, 526 F.3d
1324,1329 (11th Cir. 2008)). As we explained in Mobley v. Palm
Beach County Sheriff Department, 783 F.3d 1347, 1354 (11th Cir.
2015), however, that caselaw is not correct. Because the test we
apply asks whether an officer’s actions in using force were
App-24
We have further elaborated on some of these
factors. For example, “[t]he nature and extent of
physical injuries sustained by a plaintiff” can be
relevant in evaluating “whether the amount and type
of force used by the arresting officer were excessive.”
Stephens, 852 F.3d at 1325 (emphasis omitted).
Nevertheless, we have cautioned that “[w]hen more
force is required to effect an arrest without
endangering officer safety, the suspect will likely
suffer more severe injury, but that alone does not
make the use of that amount of force unreasonable.”
Mobley v. Palm Beach Cty. Sheriff Dep’t, 783 F.3d
1347, 1356 (11th Cir. 2015) (per curiam).
1. The Applicable Facts
We now consider these principles in light of the
facts before us. But before we can analyze whether the
force used here was excessive under the Fourth
Amendment, we must first identify the facts to which
we apply our analysis. Here, Hinson himself
remembers nothing about the arrest, 10 and no
witnesses other than the Officers have filed
statements concerning the arrest.
Hinson complains that the Officers employed
excessive force in three ways: they “SLAMMED HIM
TO THE GROUND”; they “REPEATEDLY BEAT[]
[him] WITH FLASHLIGHTS”; and they kicked him
“WHILE [he was] IN HANDCUFF[]S AND LAYING
objectively reasonable, the test is not a subjective one. Id. So we
do not consider an officer’s subjective intent in applying force. Id.
10 According to Hinson’s recorded post-arrest interview
statements, he also remembers nothing about the murder earlier
that evening.
App-25
ON HIS STOMACH.” Hinson also alleges in his
complaint that he cannot recall what the Officers did
during the arrest because he was “KNOCKED
UNCONSCIOUS FROM THE DEFENDANTS[‘]
EXCESSIVE USE OF FORCE.”
As we have noted, we view all facts and draw all
reasonable inferences in favor of the non-moving party
when reviewing a summary-judgment ruling.
Glasscox, 903 F.3d at 1212. This means that we
normally take as true the testimony of the non-moving
party and adopt his version of the facts in a qualifiedimmunity case. See Beshers v. Harrison, 495 F.3d
1260, 1262 n.1 (11th Cir. 2007) (citing Scott v. Harris,
550 U.S. 372 (2007)).
But here, we cannot do that since Hinson admits
that he has no memory of any events after he placed
his hands up while sitting inside his truck. Of course,
we would not want to reward an officer for unlawfully
engaging in actions that rendered the arrestee unable
to rebut the officer’s version of events. So, that Hinson
cannot personally rebut the Officers’ story does not
mean that we must necessarily accept the Officers’
version of events. Flythe v. District of Columbia, 791
F.3d 13, 19 (D.C. Cir. 2015). Rather, we must
“carefully examine all the evidence in the record . . . to
determine whether the officer’s story is internally
consistent and consistent with other known facts.” Id.
(quoting Scott v. Henrich, 39 F.3d 912, 915 (9th Cir.
1994))
(quotation
marks
omitted).
Where
circumstantial or other evidence, if believed, “would
tend to discredit the police officer’s story,” or where
such evidence “could convince a rational factfinder
that the officer acted unreasonably,” we do not simply
App-26
accept the officer’s account. Id. (quoting Henrich, 39
F.3d at 915) (quotation marks omitted). Instead,
where the circumstantial evidence supports a dispute
of material fact, we must conclude that summary
judgment is inappropriate and allow the case to
proceed to trial. See id. (collecting cases).
Here, the other evidence consists of the video
footage, Hinson’s medical records, and Hinson’s
deposition testimony. So if sufficient evidence exists
for Hinson to withstand summary judgment on the
Fourth Amendment qualified-immunity inquiry, it
must come from those sources or inconsistencies in the
Officers’ testimony. See Fennell v. Gilstrap, 559 F.3d
1212, 1214 & n.1 (11th Cir. 2009) (where plaintiff did
not remember what occurred during his arrest or
while at police station, the court looked to statements
of police officers and relevant surveillance video).
We begin with the video recording. It reflects that
Anderson did indeed take Hinson to the ground. But
it does not show that Bias or Anderson beat Hinson
with a flashlight or that they kicked him.
Indisputably, Bias struck Hinson five times, and
Anderson struck him once. But each Officer used his
fist to inflict the strikes. And one Officer did
inexplicably touch the front of his shoe to Hinson’s
back while Hinson was on the ground, but the
recording does not, by any measure, show a kick. Nor
does the medical evidence provide any indication that
an Officer beat Hinson with a flashlight or kicked
Hinson in the back. Indeed, the record contains no
evidence that Hinson suffered a cracked skull, cracked
or broken bones, or even bruises in the areas where he
was allegedly beaten with a flashlight and kicked in
App-27
the back. It is difficult to conceive of how strikes to the
body and head with a flashlight or a kick to the back
would not leave a mark.
Since the record lacks evidence of flashlight
strikes or kicks, the allegedly excessive acts we must
evaluate consist of Anderson’s takedown of Hinson,
Bias’s five fist strikes of Hinson, and Anderson’s single
fist strike of Hinson. Significantly, though, in
evaluating the Officers’ actions, we must accept as
true all evidence the Officers have submitted that
Hinson does not contest and that Hinson’s evidence—
the video recording and medical records—does not
contradict. See Beshers, 495 F.3d at 1262 n.1 (citing
Scott, 550 U.S. at 372). We also do not accept Hinson’s
version of events where the video recordings flatly
contradict them. See Id. (“[T]o the extent [a party’s]
version of the facts is clearly contradicted by [video
recordings], such that no reasonable jury could believe
it, we do not adopt [that party’s] factual allegations.”)).
So here, these rules mean we must credit the
Officers’ statements that Hinson repeatedly ignored
their instructions to put his hands up, to keep his
hands up, to leave his truck, to stop moving towards
the officer behind him after he got out of his truck, and
to release his hands from underneath him so an officer
could restrain them in handcuffs. As we have noted,
though the surveillance video lacks audio, the time
stamp on the video shows that more than ample time
passed between the Officers’ alleged commands to
Hinson and either Hinson’s eventual responses or the
Officers’ resulting actions for Officers to have
repeatedly given Hinson the instructions to which
they all attested, in the interlude. Plus, Hinson does
App-28
not assert that the Officers did not so instruct him or
that he cooperated. And we likewise have found
nothing in the record to suggest that the Officers did
not direct Hinson in the manner they claim or that
Hinson did not fail to comply. So based on the
uncontroverted video evidence and Officers’
statements, we must assume that the Officers did so
instruct Hinson and that Hinson did not initially
comply.
As for whether the Officers knocked Hinson
unconscious in the course of the force they applied, we
cannot tell either way from looking at the video.
Nevertheless, the Officers did not attest that they did
not knock him unconscious. So since we are reviewing
Hinson’s case on the Officers’ motion for summary
judgment, we will assume without deciding that they
did.
2. Application of the Fourth Amendment Factors
Having identified the universe of facts on
summary judgment, we must apply the six Fourth
Amendment excessive-force factors. Here, the crime
was extremely serious: a man had just been knifed to
death, apparently without provocation. The Officers
also observed blood on Hinson’s hands and shirt,
which tended to corroborate the idea that Hinson was
the one who had stabbed the victim. In addition,
Hinson matched the physical description of the
suspect that a witness had provided.
And when Officers encountered Hinson, they had
every reason to believe he was still armed. Even if the
Officers saw or heard Hinson drop a knife out his front
window, they had no way of knowing whether he had
App-29
other weapons inside the truck with him. 11 (As it
turned out, Hinson did have another knife inside the
truck, tucked between his seat and the center
console.). Hinson was also in a functioning vehicle.
Particularly in light of his erratic behavior at Fionn
MacCool’s, the Officers reasonably believed that
Hinson posed a substantial and immediate threat to
their safety and that of others. Notably, Hinson had
also repeatedly failed to comply with nearly all of the
Officers’ simple instructions, making him seem even
more unpredictable to a reasonable officer. On these
facts, a reasonable officer could feel a compelling need
to apply force to obtain control of Hinson and ensure
he did not hurt himself, the Officers, or others.
As for the proportionality of the force to the need
for it, we first consider Anderson’s takedown of
Hinson. As we have noted, immediately before
Anderson took Hinson to the ground, Hinson failed to
comply with the Officers’ instructions to stop moving
back towards Bias. And he did this after repeatedly
ignoring the Officers’ prior instructions to put his
hands up, to keep them up, and to exit the truck. So
11 The fact that Anderson attested that the knife dropped from
Hinson’s lap when, in reality, Hinson dropped the knife out his
window could perhaps, on a different record, allow a reasonable
jury to conclude that Anderson had lied, and if he had lied about
that, that he had lied about other things. But here, there is
nothing to support Hinson’s version of the facts concerning his
arrest, and whether the knife was dropped out the window or
dropped from Hinson’s lap makes no difference to the
reasonableness of the Officers’ decisions during the course of
Hinson’s arrest. Therefore, this one inconsistency between the
Officers’ statements and the video recording of the arrest cannot
save Hinson from summary judgment.
App-30
the Officers were faced with a man who had just
apparently slashed the victim in the throat without
provocation; they had no way of knowing whether he
remained armed; they had just seen him fail
repeatedly to comply with their instructions; and in
violation of the Officers’ instructions, he was moving
towards an unarmed Officer who was already in close
proximity to him. Under these circumstances, a
reasonable officer could conclude that the amount of
force Anderson applied in taking Hinson to the ground
was appropriate, in light of the need to prevent what
reasonably could have appeared to be imminent harm
to Bias, since Hinson continued to move towards him.
We now turn to the strikes the Officers inflicted
on Hinson while he was on the ground. According to
the Officers’ uncontradicted attestations, Bias was
straddling Hinson, trying to handcuff him. Bias
repeatedly instructed Hinson to give Bias his hands,
and Hinson once again failed to comply. So, Bias
explained, he became concerned that Hinson was
trying to get a weapon while his hands were under his
body. To avert that from possibility, Bias inflicted
hammer strikes to Hinson’s body, along with
interceding repeated instructions to Hinson to make
his hands available to Bias for cuffing. After the third
such strike, when Hinson was continuing to ignore
Bias’s instructions, Anderson used a “paincompliance” hand strike to Hinson’s head in an effort
to obtain compliance. As soon as Hinson gave his
hands to Bias, no further blows occurred.
Once again, in the situation confronting the
Officers, the Officers knew that for no apparent
reason, Hinson had just stabbed the victim in the
App-31
throat; they had no way to be sure he was not still
armed at the time; he had repeatedly failed to comply
with their instructions; and it seemed like he may
have been trying to get his hands on a weapon while
Bias was trying to cuff him. Under these
circumstances, we cannot say that the fist blows the
Officers used to get Hinson to follow the instructions
to produce his hands for cuffing inflicted an
unreasonable amount of force in light of the need to
maintain the safety of Officers and others.
And this is particularly true when we consider the
last Fourth Amendment excessive-force factor: the
severity of the injuries. Here, photographic evidence
shows abrasions around Hinson’s left eye and
forehead, as well as a small bruise on the part of
Hinson’s right knee that abutted the ground while
Bias tried to handcuff him. Hinson’s medical records
from his admission to the jail reflect nothing further
and describe Hinson’s abrasions as “minor and not
bleeding” at that time. And Dr. Rao opined that
Hinson’s only injuries were “merely superficial and
non-life threatening” and “not consistent with being
punched, kicked, or beaten with a flashlight . . . .”
Hinson’s jail medical records also show that Hinson’s
injuries healed soon after his admission to the jail.
When we account for all of the Fourth
Amendment excessive-force factors, then, we must
conclude that the Officers’ conduct in taking Hinson to
the ground and fist-striking him were objectively
reasonable uses of force on this record. As a result, the
Officers did not violate Hinson’s Fourth Amendment
right to be free from the use of excessive force in
securing his arrest. Since Hinson cannot show a
App-32
violation of his Fourth Amendment right, the Officers
are entitled to qualified immunity on Hinson’s Fourth
Amendment claim.
And since no Fourth Amendment violation was
established, the Officers who allegedly failed to
intervene to stop the use of force in Hinson’s arrest are
also entitled to qualified immunity.
B. Defendant Officers are entitled to qualified
immunity on Hinson’s Eighth Amendment claim
of deliberate indifference to medical need.
In evaluating whether the Officers are entitled to
qualified immunity on Hinson’s Eighth Amendment
claim of deliberate indifference to medical needs, we
again begin our analysis by determining whether
Hinson established that the Officers committed an
Eighth Amendment violation.
Among other functions, the Eighth Amendment
prohibits “cruel and unusual punishments.” U.S.
Const. amend VIII. Deliberate indifference of a
medical need violates the Eighth Amendment because
it amounts to “the unnecessary and wanton infliction
of pain. . . .” Estelle v. Gamble, 429 U.S. 97, 104 (1976)
(cleaned up). To set out a claim for deliberate
indifference to medical need, Hinson must make three
showings: (1) he had a serious medical need; (2) the
Officers were deliberately indifferent to that need; and
(3) the Officers’ deliberate indifference and Hinson’s
injury were causally related. Taylor v. Hughes, 920
F.3d 729, 733 (11th Cir. 2019).
We have explained that a “serious medical need”
is an injury or condition that a physician has
diagnosed as requiring treatment or that “is so obvious
that even a lay person would easily recognize the
App-33
necessity for a doctor’s attention.” Id. (cleaned up). To
qualify as a “serious medical need,” an injury or
condition, if not treated, must create a “substantial
risk of serious harm.” Id. (cleaned up). For example,
we have concluded that a freely bleeding cut that
created a pool of blood on the ground and required
stitches presented a serious medical need. See
Aldridge v. Montgomery, 753 F.2d 970, 972-73 (11th
Cir. 1985) (per curiam). We have also found broken
bones to constitute a serious medical need. Brown v.
Hughes, 894 F.2d 1533, 1538-39 (11th Cir. 1990) (per
curiam). And depending on the circumstances, severe
pain that is not promptly or adequately treated can
present a serious medical need. McElligott v. Foley,
182 F.3d 1248, 1255-59 (11th Cir. 1999).
Here, Hinson’s claim fails at the first step. Hinson
has not identified evidence establishing a serious
medical need constitutionally requiring more prompt
treatment than Hinson received. As we have noted,
Hinson unfortunately experienced skin abrasions on
his face and a bruise on his knee. But Childers
attested that when he interviewed Hinson at the
police station following Hinson’s arrest, Hinson was
not actively bleeding. The video recording of Hinson’s
interview
appears to
corroborate
Childers’s
assessment. And when Childers asked Hinson
whether he was “alright,” Hinson responded that he
was.
Similarly, when Hinson’s wife visited, although
the two discussed his abrasions, Hinson never said he
was not physically alright, never asked for medical
assistance, and never complained he was in pain. Nor
does the video recording of Hinson’s interaction with
App-34
his wife suggest in any way that Hinson was in pain
or even uncomfortable. Rather, the video shows
Hinson’s wife wiping at the abrasions without any
complaint by Hinson. Other video footage shows
Hinson repeatedly touching and picking at his wounds
without any indication of pain.
Hinson’s jail medical records also do not reflect he
presented with a serious medical need. The health
professional who screened Hinson when he was
admitted to the jail indicated “[n]o trauma identified”
and described Hinson’s wounds as “minor and not
bleeding at this time.” As treatment, she directed only
that he keep the wounds clean, using soap and water.
And she reported that Hinson denied having any pain
when she asked him.
Finally, as we have noted, after reviewing
Hinson’s records and the video recording of Hinson’s
interview, Dr. Rao concluded that Hinson’s wounds
“were merely superficial and non-life threatening” and
that they “did not require medical attention.”
To be sure, Hinson testified during his deposition
that he suffered “throbbing pain,” “sharp pain,” and
“dull pain” and that his face and head were “sore to
the touch.” But Hinson never did anything during the
interview to convey those feelings to the Officers who
questioned him or to anyone else. On the contrary,
when asked specifically if he was “alright” and “okay”
and if he had any pain, he never indicated he was in
pain or distress in any way. For this reason, and
because Hinson did not exhibit an injury or condition
that was “so obvious that even a lay person would
easily recognize the necessity for a doctor’s attention,”
App-35
he has not established that he had a serious need that
required medical attention.
And even if Hinson could somehow get past the
serious-medical-need element, he has not shown that
any failure to treat or delay in treatment of any
injuries he experienced during his arrest caused
further injury or worsened his condition. True, Hinson
asserted in his Complaint that he “SUFFERED
INJURIES TO HIS EAR AND NOW HAS CHRONIC
MIGRAINES” and that, because he did not receive
necessary and timely treatment for the injuries
inflicted during his arrest, he “SUFFERED
FURTHER INJURY AND PHYSICAL, EMOTIONAL
P[]SYCHOLOGICAL PAIN AND INJURY.”
But during his deposition, Hinson identified only
his prior Naval service as a cause of his hearing
condition, chalking up the ringing in his ears and his
hearing loss to having slept over the torpedo tube on
the submarine where he served. Nor did Hinson
present any medical evidence suggesting a link
between the delay of treatment for any injuries he
experienced during his arrest, on the one hand, and
his ear-related problems, on the other.
Similarly, Hinson’s jail medical records reflect
that Hinson claimed in a February 5, 2013, mentalhealth-related medical visit that he suffered from
post-traumatic stress disorder, which he attributed to
his prior Naval service. As with the hearing issues,
Hinson presented no evidence suggesting that any
delay of treatment for any injuries he suffered during
his arrest affected his mental health.
So Hinson’s deliberate-indifference claim fails
independently for the reason that he did not satisfy
App-36
the causation requirement. Because the record does
not support the conclusion that Hinson suffered a
violation of his Eighth Amendment right to be free
from deliberate indifference to a medical need, the
Officers are entitled to qualified immunity on this
claim.
V. Conclusion
At the end of the day, the proof is in the video
recordings in this case. Or more accurately, the proof
of Hinson’s case is not in the video recordings here.
Those video recordings simply do not, in any material
way, contradict the Officers’ version of what occurred
during and after Hinson’s arrest. Based on those facts,
we cannot conclude that the Officers violated either
Hinson’s Fourth Amendment right to be free from the
use of excessive force in effecting an arrest or his
Eighth Amendment right to be free from deliberate
indifference to medical needs. For these reasons, the
Officers are entitled to qualified immunity, and the
order of the district court must be vacated.
VACATED AND REMANDED.
App-37
Appendix B
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
________________
No. 3:14-cv-1217-J-25MCR
________________
MATTHEW REID HINSON,
v.
Plaintiff,
R.A. BIAS, ETC.; ET AL.,
Defendants.
________________
May 24, 2016
________________
ORDER
I. Status
Plaintiff, proceeding on a civil rights Complaint
(Doc. 1), 1 asserts that his rights under the Fourth and
Eighth Amendments were violated. Complaint at 5.
He states police officers used excessive force against
him on October 7, 2012, during an arrest. Id. at 5-6.
He alleges that Officers Bias, Kremler, Williams, and
Anderson were involved in the arrest, however,
Plaintiff is unsure of which officers were involved in
the actual takedown and handcuffing procedure. Id. at
6. Plaintiff states that according to the arrest report,
Officers Bias, Kremler, Williams, and Anderson took
1 With respect to the Complaint, the Court references the page
numbers assigned by the electronic filing system.
App-38
part in the arrest, and Defendant Schoonover was the
lead supervisor at the scene of the arrest. 2 Id.
Plaintiff alleges that one of the officers took him
out of his truck, slammed him to the ground, and
placed handcuffs on him while he lay face-first on the
ground. Id. Plaintiff further alleges that once he was
handcuffed,
officers
assaulted
him
without
provocation or just cause. Id. He contends that he was
repeatedly beaten with flashlights and kicked, in
violation of the Fourth Amendment. Id. at 7. He also
states that some officers failed to intervene. Id. at 5.
Plaintiff states that as a result of this alleged beating,
he suffered multiple lacerations, bruises, and swelling
on the side of his face and upper parts of his body. Id.
at 7. He also states that he suffered injuries to his ear
and now suffers from chronic migraines. Id. Plaintiff
believes that he was knocked unconscious and does
not remember the assault upon him. Id. He alleges
that Defendant Schoonover, “the apparent supervisor
at the scene,” failed to take any action to stop the
violation. Id.
Plaintiff contends that all of the Defendants were
deliberately indifferent to his medical needs as he was
bleeding from the side of his face and needed medical
attention. Id. Plaintiff states that he was deprived of
any medical treatment despite his obvious need for
medical care. Id. Plaintiff asserts that the Defendants’
failures in this regard resulted in Plaintiff suffering
further injury and physical and emotional pain. Id.
2 The Clerk of the Court shall correct Defendant Rob
Schnoover’s surname to Schoonover.
App-39
Plaintiff seeks declaratory relief finding the
Defendants violated his Fourth and Eighth
Amendment rights when they used excessive force and
failed to provide him with medical care. 4 Id. at 9. He
also seeks compensatory and punitive damages
against each Defendant. Id.
This cause is before the Court on a Motion by
Defendants, Anderson and Bias, for Final Summary
Judgment (Doc. 41) and a Motion by Defendants
Kremler, Williams, and Schoonover for Final
Summary Judgment (Doc. 42). 5 Jointly, Defendants
filed a Notice of Filing Exhibits in Support of Their
Respective Motions for Summary Judgment (Doc. 39),
a Supplemental Notice of Filing Documents and
Exhibits in Support of Their Respective Motions for
Summary Judgment (Doc. 40), a Notice of Filing
Corrected Exhibit [Docket No. 39-9) [Exhibit 9,
4 Plaintiff raises two claims in his Statement of Claim:
1) United States Constitution Amendment Four excessive
use of force, deprivation of good name, police brutality,
failure to intervene[;]
2) United States Constitution Amendment Eight cruel and
unusual punishment through deliberate indifference to
medical needs after police brutality[.]
Complaint at 5.
5 The Court advised Plaintiff of the provisions of Fed. R. Civ.
P. 56, notified him that the granting of a motion to dismiss or a
motion for summary judgment would represent a final
adjudication of this case which may foreclose subsequent
litigation on the matter, and gave him an opportunity to respond
(Doc. 14).
App-40
Declaration of Janice G. Lowe, signed] (Doc. 50), and
a Notice of Supplemental Authority (Doc. 52). 6
On November 30, 2015, Plaintiff filed his
Response to Defendants Anderson’s and Bias’ Motion
for Summary Judgment (Doc. 54) and his Response to
Defendants Kremler’s, Williams’, and Schoonover’s
Motion for Summary Judgment (Doc. 55). He also filed
Plaintiff’s Notice of Filing Exhibits in Support of his
Respective Response to Defendants’ Motions for
Summary Judgment (Doc. 56). 7 In addition, Plaintiff
submitted a Response to Defendants’ Notice of
Supplemental Authority (Doc. 62).
Defendants were granted leave to file a reply, and
they filed a Reply to Plaintiff’s Response to
Defendants’ Motion for Final Summary Judgment
(Doc. 66). The Court also granted Plaintiff leave to file
a traverse, and he filed his Traverse to Defendants’
Reply (Doc. 68).
The Court has thoroughly reviewed all of the
submitted exhibits and viewed the video footage
provided to the Court by the parties. 5 Based on the
record before the Court, the Court is not convinced
that all of the Defendants have met their burden
under the summary judgment standard on all of the
claims raised in the Complaint.
6 The Court hereinafter refers to Defendants’ Exhibits as
“Defendants’ Exhibit.”
The Court hereinafter refers to Plaintiff’s Exhibits as
“Plaintiff’s Exhibit.”
7
5 The Court also reviewed the video referenced by Plaintiff in
his Response (Doc. 55) at 5. See http://www.news4jax.com/
HinsonDefense-looking-into-evidence/l9277332.
App-41
II. Summary Judgment Standard
“Summary judgment is appropriate only 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.’” Moton v. Cowart, 631
F.3d 1337, 1341 (11th Cir. 2011) (quoting Fed. R. Civ.
P. 56(a)). “If the moving party meets this burden, ‘the
nonmoving party must present evidence beyond the
pleadings showing that a reasonable jury could find in
its favor.’” Ekokotu v. Federal Exp. Corp., 408 F. App’x
331, 333 (11th Cir.) (per curiam) (quoting Fickling v.
United States, 507 F.3d 1302, 1304 (11th Cir. 2007)),
cert. denied, 132 S.Ct. 420 (2011).
III. Excessive Force
Plaintiff references the Fourth Amendment in his
Complaint, and “[p]roperly analyzed, the basis for his
§ 1983 claim of excessive force comes under the rubric
of the Fourth Amendment . . . .” Jones v. Marcum, 197
F.Supp.2d 991, 998 (S.D. Ohio 2002). The Court must
employ the Fourth Amendment’s “reasonableness”
standard. Id. (citation omitted). Further, it must be
recognized that some degree of force is constitutionally
acceptable when a police officer is effecting an arrest.
Id. (citation omitted).
The Eleventh Circuit addressed the parameters of
the excessive force inquiry in Crosby v. Monroe
County, 394 F.3d 1328, 1333-34 (11th Cir. 2004):
The Fourth Amendment encompasses the
right to be free from the use of excessive force
during an arrest. See Vinyard v. Wilson, 311 F.3d
1340, 1347 (11th Cir. 2002). As we have recently
said, “[t]he ‘reasonableness’ inquiry in an
excessive force case is an objective one: the
App-42
question is whether the officer’s actions are
‘objectively reasonable’ in light of the facts and
circumstances confronting him, without regard to
his underlying intent or motivation.” Kesinger ex
rel. Estate of Kesinger v. Herrington, 381 F.3d
1243, 1248 (11th Cir. 2004).
In making an excessive force inquiry, we are
not to view the matter as judges from the comfort
and safety of our chambers, fearful of nothing
more threatening than the occasional paper cut as
we read a cold record accounting of what turned
out to be the facts. We must see the situation
through the eyes of the officer on the scene who is
hampered by incomplete information and forced
to make a split-second decision between action
and inaction in circumstances where inaction
could prove fatal. See Graham v. Connor, 490 U.S.
386, 396-97, 109 S.Ct. 1865, 1872, 104 L.Ed.2d
443 (1989); Kesinger, 381 F.3d at 1248-50; Garrett
v. Athens-Clarke County, 378 F.3d 1274, 1279
(11th Cir. 2004).
The Eleventh Circuit described the relevant
evaluation process for an excessive force claim:
To balance the necessity of the use of force
used against the arrestee’s constitutional rights,
a court must evaluate several factors, including
“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.” Graham, 4 90 U.S. at 396, 109 S.Ct. 1865;
see also Lee, 284 F.3d at 1197-98 (citing Leslie v.
Ingram, 786 F.2d 1533, 1536 (11th Cir. 1986) and
App-43
stating that “in determining if force was
reasonable, courts must examine (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”) (footnote
omitted). As this Court also recently explained in
Lee, “Graham dictates unambiguously that the
force used by a police officer in carrying out an
arrest must be reasonably proportionate to the
need for that force, which is measured by the
severity of the crime, the danger to the officer, and
the risk of flight.” 284 F.3d at 1198.
Vinyard v. Wilson, 311 F.3d 1340, 1347 (11th Cir.
2002).
“It is also well-settled that the right to make an
arrest ‘necessarily carries with it the right to use some
degree of physical coercion or threat thereof to effect
it.’” Schultz v. Hall, 365 F.Supp.2d 1218, 1225 (N.O.
Fla. 2005) (citations omitted). The Eleventh Circuit,
providing guidance in how to analyze these types of
Fourth Amendment arrest cases, states: “[i]n
analyzing whether excessive force was used, courts
must look at the totality of the circumstances: not just
a small slice of the acts that happened at the tail of the
story.” Garrett v. Athens-Clarke County, Ga., 37 8 F.
3d 127 4, 1280 (11th Cir. 2004) (per curiam).
With regard to the question of the extent of the
injury, in Lloyd v. Tassell, No. 07-11205, 2009 WL
179622, at *2 (11th Cir. Jan. 27, 2009) (not selected for
publication in the Federal Reporter), the Eleventh
Circuit reiterated that the extent of the injury is not
determinative, but the focus is rather on whether the
force was objectively unreasonable:
App-44
The extent of injury is not determinative,
because reasonable force does not become
excessive merely because it aggravates a preexisting condition of which the officer was
unaware. Lee, 284 F.3d at 1200. Conversely,
objectively unreasonable force does not become
reasonable or de minimis merely because the
plaintiff only suffered minimal harm. Id. In
addition, we have noted that force is more likely
to be unlawful if it occurred after a suspect was
already secured, the arrest effected, and danger
vitiated, as opposed to force that occurred while
the officer was still securing a suspect. Id. at 11991200.
Additionally, Plaintiff has made a claim that some
of the Defendants failed to intervene, including the
“apparent supervisor” at the scene, Defendant
Schoonover. The Eleventh Circuit has recognized that
there is an enforceable claim for failure to intervene:
We have previously said that an officer can be
liable for failing to intervene when another officer
uses excessive force. See Ensley v. Soper, 142 F.3d
1402, 1407-08 (11th Cir. 1998) (“[I]f a police
officer, whether supervisory or not, fails or refuses
to intervene when a constitutional violation such
as an unprovoked beating takes place in his
presence, the officer is directly liable[.]”); see also
Riley v. Newton, 94 F. 3d 632, 635 (11th Cir. 1996);
Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir.
1986); Fundiller v. City of Cooper City, 777 F.2d
1436, 1441-42 (11th Cir. 1985). This liability,
however, only arises when the officer is in a
position to intervene and fails to do so. See Ensley,
App-45
142 F.3d at 1407 (“[F]or an officer to be liable for
failing to stop police brutality, the officer must be
in a position to intervene[.]”).
Priester v. City of Riviera Beach, Fla., 208 F.3d 919,
924-25 (11th Cir. 2000). See also Skrtich v. Thornton,
280 F.3d 1295, 1301 (11th Cir. 2002) (noting that an
allegation that an officer was present at the scene and
failed to take reasonable steps to protect a victim from
another officer’s use of excessive force states a claim
for relief) (citation and quotation omitted).
IV. Medical Care
With regard to the claim that the officers failed to
insure that Plaintiff received medical care for his
injuries, the law under 42 U.S.C. § 1983 provides:
A § 1983 claim is predicated on an alleged
violation of an underlying constitutional right. In
the case of a pretrial detainee like [Plaintiff], “the
Eighth Amendment prohibitions against cruel
and unusual punishment do not apply.” Belcher v.
City of Foley, 30 F.3d 1390, 1396 (11th Cir. 1994)
(quoting Tittle, 10 F.3d at 1539 n.3). Nevertheless,
“in regard to providing pretrial detainees with
such basic necessities as . . . medical care[,] the
minimum standard allowed by the due process
clause is the same as that allowed by the eighth
amendment for convicted persons.” Id. (quoting
Hamm v. DeKalb County, 774 F.2d 1567, 1574
(11th Cir. 1985)). Thus, pretrial detainees like
[Plaintiff] plainly have a Fourteenth Amendment
due process right “to receive medical treatment
for illness and injuries . . . .”
Cook ex rel. Tessier v. Sheriff of Monroe County, Fla.,
402 F.3d 1092, 1115 (11th Cir. 2005).
App-46
The deprivation of medical care claim raised
against these defendants is governed by the standards
found in the Fourteenth Amendment since Plaintiff
was a person arrested but not yet convicted. In other
words, as a pretrial detainee at the time of the
incident, Plaintiff’s claim of deprivation of medical
care sounds properly in the Fourteenth Amendment
right to due process of law rather than the Eighth
Amendment. The standards, however, are the same.
As such, Plaintiff must “shoulder three burdens,”
(1) he must satisfy the objective component by
showing that he had a serious medical need; (2) he
must satisfy the subjective component by showing
that the official acted with deliberate indifference to
his serious medical need; and (3) he must show that
the injury was caused by the Defendant’s wrongful
conduct. Goebert v. Lee County, 510 F.3d 1312, 1326
(11th Cir. 2007). See Harper v. Lawrence Co., Ala., 592
F. 3d 1227, 1234 (11th Cir. 2010) (to show deliberate
indifference, it requires a demonstration that the
defendant had subjective knowledge of a risk of
serious harm, that he disregarded that risk, that he
acted with more than gross negligence, and that his
conduct caused the injury) (citation omitted). In short,
Plaintiff must have had an objectively serious need, an
objectively insufficient response to that need,
subjective awareness of facts signaling the need and
an actual inference of required action from the facts
presented. Taylor v. Adams, 221 F.3d 1254, 1258 (11th
Cir. 2000), cert. denied, 531 U.S. 1077 (2001).
App-47
V. Conclusion
Based on the record before the Court, the
following matters are in dispute: (1) whether Plaintiff
disobeyed the officers’ orders or resisted arrest,
including being handcuffed; (2) whether Plaintiff fully
submitted to the officers commands and threw the
knife out the truck window or dropped the knife as he
exited the vehicle; (3) whether an officer threw
Plaintiff to the ground after Plaintiff raised his hands
and complied with the officers’ commands, and
whether officers proceeded to repeatedly strike
Plaintiff after he was taken to the ground, then beat
him (punched and kicked Plaintiff and struck Plaintiff
with an instrument, perhaps a flashlight);
(4) whether, after Plaintiff was handcuffed, an officer
repeatedly struck Plaintiff on his back, and whether
another officer struck Plaintiff with an instrument,
possibly a flashlight; (5) whether officers standing by
failed to act and stop the alleged beating and kicking
by other officers; and, (6) whether the Defendants
were deliberately indifferent to Plaintiff’s alleged
serious medical needs by denying and or delaying
medical care.
The Court recognizes that the arrest clearly
involved a serious crime and a potentially dangerous
situation for the officers. Making an arrest is a part of
a officer’s duties; however, the question remains
whether the application of force was objectively
unreasonable if Plaintiff can show he had already
submitted to the officers’ commands, he did not resist
App-48
and the actions of the officers caused Plaintiff to suffer
injuries. 6
The Court notes that the Fourth Amendment
prohibits the beating of a restrained, non-resisting
suspect. Reese v. Herbert, 527 F.3d 1253, 1274 (11th
Cir. 2008). Plaintiff alleges that after he was
6 Police were dispatched to Fioon MacCool’s Irish Restaurant
at 0029 (12:29 a.m.). Defendants’ Exhibit 4, Arrest and Booking
Report. As Plaintiff was attempting to leave the parking lot of the
Jacksonville Landing in his truck, he was apprehended by police.
Although Plaintiff was placed in a police interview room after his
arrest, he was not interviewed until 5:25 a.m. Defendants’ Motion
(Doc. 41) at 11; Defendants’ Exhibit 4, Childers’ Declaration, at
2. When Plaintiff arrived at the Police Memorial Building to be
interviewed by the police, he had visible injuries. Both the
photographs and videos taken during the course of the police
interviews depict abrasions/contusions on Plaintiff’s forehead,
face and legs. A trail of blood is visible on Plaintiff’s leg and there
is blood visible on his clothes and hands, although it is not
entirely clear whether this blood was his or that of the victim.
During an interview, Plaintiff told the detectives that he may
have lost consciousness and he may have been drugged. During
the course of the interview, Plaintiff said he thought he had been
in an altercation with the victim. He also advised the officers that
he could not remember much that transpired. The record further
shows that after the use of force and after Plaintiff was lifted from
the pavement, he fell or dropped to the ground and had to be
lifted up by an officer. Finally, the record reflects that he was not
seen by a certified medical assistant at the pretrial detention
facility until sometime between 9:40 a.m. and 10:00 a.m.
Defendants’ Exhibit 12, Phillips’ Declaration, at 1-2. He was
cleared for admission to the pretrial detention facility by 10:10
a.m. Defendants’ Exhibit 5 (Doc. 39-5 at 9). The certified medical
assistant found Plaintiff had abrasions to his face that were
minor and not bleeding at that time. Id. She recorded that
Plaintiff appeared depressed, angry and anxious. Id. at 11.
App-49
handcuffed and lying on the ground, officers beat him,
kicked him and struck him with flashlights. 7
In the photographs and the videos filed with the
Court, Plaintiff has visible contusions/abrasions to his
forehead, face, and legs. During the police interviews,
Plaintiff admits that he had been drinking, suggests
that he may have been involuntarily drugged, and
repeatedly touches his forehead and face and rubs his
eyes. 8 He also mentions that he cannot remember a
good portion of the events and he thought he had been
attacked by the victim or others in the restaurant.
Also, after being handcuffed and lifted up from the
ground, Plaintiff fell or dropped to the ground.
As far as the arrest scenario, after Plaintiff lifted
both hands up and exited the truck, the question
remains as to whether Plaintiff posed an immediate
threat to the safety of the officers or others and
whether Plaintiff was actively resisting arrest.
7 In his Complaint, Plaintiff admits that he does not remember
the alleged beating, but relies on the videos of his arrest to
support his claims.
8 In Plaintiff’s Exhibit C, the Response to Resistance Report
(primarily written by Defendant Anderson), it states that
Plaintiff’s “Physical Force Body Impact Locations” are the headface, head-forehead (left), and head-eye (left). (Doc. 56-3 at 3).
The Report states that Plaintiff was injured; he was injured when
there was officer contact; he was not treated by officers or a
rescue unit, and he sustained visible injuries. Id. at 4. The
injuries are described as abrasions. Id. Anderson describes the
physical force type as “takedown techniques.” Id. at 3. A straight
arm bar takedown is mentioned, and the cause of the injuries is
listed as the takedown. Id. at 4-5. No mention is made in the
report of the use of pain compliance strikes by the two officers.
Id. The conclusion in the report is the injuries were from the
takedown. Id.
App-50
Material facts are disputed with respect to the
excessive force claim, the failure to protect claim, and
the medical claim. The evidence, including affidavits,
pictures, videos, medical records, and Plaintiff’s
deposition create factual issues regarding the
circumstances that led to Plaintiff’s injuries, the
extent of the injuries, and the need for prompt medical
care to relieve pain or to treat the injuries.
The Supreme Court has cautioned that “[w]hen
opposing parties tell two different stories, one of which
is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not
adopt that version of the facts for purposes of ruling
on a motion for summary judgment.” Scott v. Harris,
550 U.S. 372, 380 (2007). In Scott, the Supreme Court
had the benefit of reviewing a videotape of the incident
at issue, id. at 378-80, and as such, found that the
Court of Appeals “should have viewed the facts in the
light depicted by the videotape.” Id. at 381; see Mathis
v. Adams, No. 14-10605, 2014 WL 4067751, at *2 (11th
Cir. Aug. 19, 2014) (per curiam) (citation omitted) (“In
light of the uncontroverted video evidence, the district
court was required to view the facts in the light
depicted by the video even if [plaintiff’s] allegations
contradicted its depiction.”)
Here, the parties have submitted videos that show
much of the incident in question, and Plaintiff agrees
that the video footage accurately reflects the arrest
event, to the extent that it is included in the video, as
it transpired. Accordingly, in ruling on summary
judgment, the Court views the facts and all reasonable
inferences in the light most favorable to Plaintiff
except “to the extent [Plaintiff’s] version of the facts is
App-51
clearly contradicted by the [video], such that no
reasonable jury could believe it.” Beshers v. Harrison,
495 F.3d 1260, 1262 n.1 (11th Cir. 2007) (alterations
added); see Mathis, 2014 WL 4067751, at *2 (stating
“the district court could not credit [plaintiff’s]
allegation that the defendants beat him for thirty
minutes, as that allegation was ‘blatantly contradicted
by the record [(video)], so that no reasonabl[e] jury
could believe it[]’“). Therefore, the Court relies on the
videos submitted by the parties. See Bodden v.
Bodden, 510 F. App’x 850, 852 n.2 (11th Cir. 2013) (per
curiam) (“We need not adopt the non-moving party’s
version of the facts to the extent it is clearly
contradicted by a videotape such that no reasonable
jury could believe it.”); Sims v. Quilliams, 378 F. App’x
945, 946 (11th Cir. 2010) (per curiam) (“Because the
district court relied on the facts as it observed them in
the tapes, it did not err by relying on these facts rather
than on [the plaintiff’s] contradictory assertions.”);
White v. Georgia, 380 F. App’x 796, 797 (11th Cir.
2010) (per curiam) (“It is settled law that where the
record tells two different stories, one blatantly
contradicted by the evidence, the court is not required
to adopt that version of the facts when ruling on
summary judgment.”).
In this instance, Plaintiff’s description of the use
of force is supported by the video evidence, which
shows Plaintiff putting both hands up, exiting the
truck, being taken to the ground, and two officers
striking Plaintiff while two other officers are in near
proximity. The video shows one officer employing at
least five strikes, and a second officer employing at
least one strike, and the video footage raises the
App-52
question as to whether the strike by the second officer
is done with an instrument or his hand. 9
Defendant Bias, in his sworn Declaration,
Defendants’ Exhibit 3 at 2, attests that he saw a knife
on the ground when Plaintiff got out of the vehicle. He
said he believed Plaintiff could still be armed and
dangerous. Id. at 3. He noted that Defendant
Anderson took Plaintiff to the ground to a prone
position using a straight arm takedown. Id. Defendant
Bias said he tried to quickly grab Plaintiff’s hands, but
Plaintiff had his hands underneath his body. Id.
Fearing that Plaintiff may reach for another weapon,
Defendant Bias said he struggled to get Plaintiff’s
hands free from underneath him. Id. Defendant Bias
reported that Plaintiff refused to put his hands behind
his back. Id. Bias attests that “in order to distract
Hinson from resisting me, I gave Hinson five or six
hammer strikes to his upper-mid back area as pain
compliance.” Id. He observed that Plaintiff sustained
minor abrasions to the left side of his face (cheek, eye
and forehead). Id. at 5.
Defendant Kremler, in his sworn Declaration,
Defendants’ Exhibit 8 at 2, identifies himself as one of
the plain clothes officers who approached Plaintiff’s
truck with his weapon drawn. He states that after
several commands Plaintiff put his hands up. Id. at 3.
He saw Officers Bias and Williams arrive on the scene.
Id. He observed Plaintiff being taken towards the
9 The Sheriff’s Office Response to Resistance policy states that
“officers will not intentionally strike anyone with an
intermediate weapon [described as batons and flashlights] on the
head, neck, and clavicle unless the circumstance justifies the use
of deadly force.” Defendants’ Exhibit 2 at 9 (Doc. 39-2 at 18).
App-53
ground, but then disappear from his view. Id. Kremler
noted that he ran around the truck and saw Bias on
the ground with the Plaintiff. Id. At this point,
Kremler attests that he turned off the ignition of the
truck and saw the knife on the ground. Id. He observed
Officer Bias struggling with Plaintiff and then use two
or three strikes to Plaintiff’s back to get him to release
his hands from under his body. Id. Kremler states that
he did not use force during the apprehension of
Plaintiff. Id. at 3. He did not observe any other use of
force other than the two or three strikes he saw
applied by Officer Bias. Id. He did see Plaintiff fall to
the ground after an officer stood him up. Id. He
observed minor abrasions to the left side of Plaintiff’s
face from “being on the pavement.” Id. at 4.
Defendant Officer Z. M. Anderson, in his sworn
Declaration, Defendants’ Exhibit 2 at 1, arrived at the
scene in an unmarked covert vehicle wearing plain
clothes. He approached Plaintiff’s vehicle with his
weapon drawn. Id. at 2. He observed blood on
Plaintiff’s shirt, pants and right hand. Id. He stated
that Plaintiff did not immediately comply with Officer
Kremler’s commands for Plaintiff to keep his hands
where they could see them. Id. He notes that after
several loud verbal commands, Plaintiff put both
hands up where they could be seen. Id. at 3. Anderson
describes the incident in great detail as follows:
Officer R. A. Bias and S. T. Williams then
arrived on scene to assist in apprehending the
Plaintiff. Officer Bias, Officer Williams, and I
were standing by the driver’s side of the Plaintiff’s
truck. Officer Kremler had moved to take his
position by the passenger door of the truck.
App-54
Because the truck was between two concrete
pillars and the toll booth, extracting the Plaintiff
from the truck was very difficult. Officer Bias told
the Plaintiff to get out of the vehicle with his
hands in the air. The Plaintiff did not respond.
Officer Bias told him again to step out of the truck.
When Plaintiff did not respond, Officer Bias
extracted him from the vehicle. At that point, I
saw a small black knife fall from his lap and land
on the ground next to the truck. . . . Once out of
the truck, Officer Bias told the Plaintiff to stop
and turn around away from Officer Bias. Plaintiff
did not stop and turn around as commanded but
started to walk towards Officer Bias. Officer Bias
gave the Plaintiff the command again to stop and
turn around. Plaintiff did not comply. Because
Officer Bias did not have his weapon drawn at this
time, and being much smaller than the Plaintiff
who stood well over 6 feet as compared to Officer
Bias’s short stature, I was concerned for Officer
Bias’s safety. Plaintiff was dangerously close (arm
length) to Officer Bias in a confined space,
especially when having been armed with a knife
and could have been armed with other weapons.
. . . I then grabbed Plaintiff’s left wrist with my
left hand and grabbed his left shoulder area with
my right hand and performed a police technique
called a “straight arm bar takedown.” I took the
Plaintiff to the ground by the toll booth to
apprehend him.
Once on the ground, Officer Bias attempted to
handcuff the Plaintiff. Officer Bias repeatedly
asked Plaintiff to release his hands. The Plaintiff
had his hands underneath his body in a prone
App-55
position and resisted being handcuffed by Officer
Bias. Plaintiff struggled with Officer Bias’s
attempts to handcuff him. I gave Plaintiff one
compliance strike to his face, which caused
Plaintiff to release his hands in order for
Officer Bias to handcuff him.
Once Plaintiff was handcuffed, I did not use
any other force on him. I did not strike Plaintiff
with a flashlight as he alleges in his complaint. I
did not even have a flashlight with me that night.
I did not kick or beat Plaintiff before or after he
was handcuffed.
Id. at 3-4 (paragraph enumeration omitted and
emphasis added).
Anderson further stated:
I used the pain compliance strike technique
and the straight arm bar takedown technique
because of the circumstances at the time. The
Plaintiff had just stabbed another person, and he
had a knife when he confronted him. I did not
know if he had another weapon or weapons. Thus,
I was concerned for officer safety (including mine).
He was non-compliant with lawful commands.
Consequently, it was vital to gain control of him
and the situation rapidly and get him handcuffed
before someone else got hurt.
I did not see any other officers use force on
Plaintiff after he was handcuffed. I did not see any
other officer kick or beat Plaintiff with or without
a flashlight before or after he was handcuffed. I
was not carrying a flashlight with me that night.
App-56
Plaintiff never complained to me of any pain
or asked for medical assistance. After the Plaintiff
was restrained, I observed that he had sustained
minor abrasions to the left side of his face (cheek,
eye and forehead) from being taken to the ground.
I observed no other injuries to the Plaintiff’s
person related to this incident or otherwise.
At no time during my contact with the
Plaintiff, or during my observation of the Plaintiff,
did I perceive him as having any injury that
required medical attention.
Id. at 5-6 (paragraph enumeration omitted).
Detective Kevin D. Munger, one of the detectives
that interviewed Plaintiff, states in his sworn
Declaration that he observed minor abrasions to the
left side of Plaintiff’s face. Defendants’ Exhibit 10 at 2.
He also states that Plaintiff did not request medical
attention or appear to need medical attention. Id.
Jacqulyne Phillips, the certified medical assistant at
the pretrial detention facility, attests that Plaintiff
has some minor abrasions to his face, and most of the
blood had dried. Defendants’ Exhibit 12 at 2. She
instructed Plaintiff to keep the wounds clean with
soap and water. Id. She reports that Plaintiff did not
complain of any pain, nor did he appear to be in any
pain. Id.
Valerie Rao, M. D., a non-treating physician who
reviewed Plaintiff’s medical records, opines that
Plaintiff suffered minor abrasions to the left side of his
face, and these abrasions were superficial and non-life
threatening. Defendants’ Exhibit 13 at 2. She further
opines that these abrasions likely occurred when
Plaintiff’s face came into contact with the paved
App-57
parking lot. Id. She also opines that the appearance of
these abrasions is not consistent with being punched,
kicked, or beaten with a flashlight or knee strikes. 10
Id.
Defendant Lieutenant Robert Schoonover, in his
sworn Declaration, Defendants’ Exhibit 14 at 2, states
that he arrived at the Landing after Plaintiff was in
police custody. He further attests that he was not
present at the Landing when Plaintiff was
apprehended or handcuffed, and he did not play any
role in apprehending Plaintiff and was not in a
position to intervene during the arrest. Id. He states
that he did observe minor abrasions on Plaintiff’s face
when he walked by the interview room and asked the
sergeant about Plaintiff’s facial injuries. Id. He states
that the sergeant told him that Plaintiff had said that
he was okay. Id. Finally, Schoonover relates that he
gave a press conference the following day and said
that there was no clear motive for the killing except
that the victim had spoken to Plaintiff’s wife at the bar
and it was believed that Plaintiff may have been
jealous and became enraged when he approached the
victim. Id. at 3.
Defendant Williams, in his sworn Declaration,
states that he was behind Officer Bias. Defendants’
Exhibit 15 at 2. Williams explains that he heard
10 Of significance, Defendant Anderson admits in his
Declaration that he struck Plaintiff in the face with one
compliance strike. Dr. Rao’ s opinion, to the extent she is
suggesting there was no strike to the face, is inconsistent with
the facts as admitted. The video evidence supports Plaintiff’s
allegation that he was struck as well.
App-58
Officer Bias direct Plaintiff to get out of the truck with
his hands up and to turn away from him. Id.
Williams states that Officer Bias opened the truck
door, which was close to the pay booth. Id. Williams
then describes the use of force:
Once Hinson put one leg on the ground, I observed
Officer Bias take his hand and pull Hinson out of
the truck. At this point, I heard Officer Bias tell
Hinson to turn around, but Hinson did not obey. I
observed Officer Anderson grab Hinson and take
him to the ground in a prone position next to
the booth.[11] I observed Officer Bias
immediately try to get Hinson’s hands from
underneath him. Hinson was not cooperating. I
saw Officer Bias struggling to get Hinson’ s hands
from underneath him, and then give him [sic]
several pain compliance strikes to Hinson’ s
back.
Id. (emphasis added)
Defendant Williams make no mention of
Defendant’s Anderson’s strike to Plaintiff’s face. In
fact, Williams states that he did not observe “Officer
Anderson or Officer Kremler strike, punch or beat
Hinson before or after he was handcuffed.” Id.
Generally, Defendants contend the following:
Plaintiff had just used a knife to slit the throat of a
customer at the restaurant and the customer was
bleeding to death or was in critical condition; Plaintiff
was attempting to drive away from the scene; when
approached, Plaintiff, inside of his truck, was not
11 Prone means lying flat, face downward.
App-59
entirely responsive to police commands; a knife was
found on the ground next to Plaintiff’s truck (and was
either thrown out of the truck by Plaintiff or dropped
to the ground when he exited the vehicle); one of the
officers took Plaintiff to the ground claiming Plaintiff
failed to follow commands upon exiting the vehicle;
once on the ground, the officers assert that Plaintiff’s
hands were underneath his body, preventing the
officers from observing his hands and handcuffing
him; the officers claim they struck Plaintiff with their
hands in order to get Plaintiff to release his hands
from under his body; a second knife was found in the
truck; the officers claim they did not strike Plaintiff
with instruments or kick Plaintiff; they claim
Plaintiff’s injuries occurred when he came in contact
with the paved parking lot during the process of
restraint; they note that Plaintiff, after being returned
to his feet, fell or dropped to the pavement, but did not
strike his face on the ground during that fall; and
Plaintiff never complained of any injuries and never
requested medical attention.
The parties agree that a use of force did occur;
however, Plaintiff contends that the use of force was
not applied in a good-faith effort to arrest and secure
him. The Court notes that Plaintiff was apparently not
charged with resisting arrest. Although the use of
force incident recorded on the videotape is brief, the
Court is not convinced that the record shows “no more
than a de minimis use of force,” Smith v. Sec’y, Dep’t
of Corr., 524 F. App’x 511, 513 (11th Cir. 2013) (per
curiam). Indeed, the video shows Plaintiff being taken
abruptly down to the ground after he put his hands up
and exited the truck in an apparent attempt to
surrender. Once on the ground, the video shows that
App-60
one officer uses his hand to strike Plaintiff five times.
During the course of those strikes, the video shows a
second officer strike Plaintiff with perhaps an
instrument in his hand (Plaintiff suggests a flashlight
was used to beat him) or perhaps, just his hand. 12 Of
further import, due to camera angles; motion sensor
cameras starting and stopping; and a rather large sign
in close proximity to the take down, the entire incident
is not fully captured on videotape.
This type of force is not similar to a simple push
or a shove. Id. 525 F. App’x at 514 (stating that the
type of force allegedly used by defendant (twisting
plaintiff’s arm and pressing him against the wall) was
“not of a sort repugnant to the conscience of mankind,”
but instead was similar to the push or shove described
in Wilkins,[ 13] which “almost certainly fails to state a
valid excessive force claim[]”) (citations and
quotations marks omitted). Additionally, there is no
evidence that efforts were made to temper the effect of
the use of force at the scene. See Ledlow v. Givens, 500
F.App’x 910, 913 (11th Cir. 2012) (per curiam), cert.
denied, 133 S.Ct. 2802 (2013); Fennell v. Gilstrap, 559
F.3d 1212, 1220 (11th Cir. 2009) (per curiam) (“The
immediate offer of medical assistance demonstrates
an effort to temper the severity of the response.”). Of
import, an offer of immediate medical care is the type
of response that “makes it less likely that [officers
were] acting sadistically instead of in good faith [,]”
12 Of course, this would be a jury determination. It is difficult
to discern whether it is just a hand striking the Plaintiff or an
instrument like a baton or flashlight in an officer’s hand striking
the Plaintiff.
13 Wilkins v. Gaddy, 559 U.S. 34, 38 (2010).
App-61
Cockrell v. Sparks, 510 F.3d 1307, 1310 (11th Cir.
2007) (per curiam), and in this instance, Defendants
do not contend, and the submitted evidence does not
show, that the officers at the scene made any efforts to
mitigate the effects of the force that was applied.
In the Complaint, Plaintiff alleges several officers
failed to intervene, including the supervisor,
Defendant Schoonover. It is clear, “‘[i]f a police officer,
whether supervisory or not, fails or refuses to
intervene when a constitutional violation such as an
unprovoked beating takes place in his presence, the
officer is directly liable under Section 1983. ‘“Dukes v.
Miami-Dade Cnty., 232 F. App’x 907, 913 (11th Cir.
2007) (per curiam) (quoting Ensley v. Soper, 142 F.3d
1402, 1407 (11th Cir. 1998) (internal citation and
quotation omitted)). However, “[t]his liability only
applies when the defendant officer was in a position
to intervene.” Id. (emphasis added). Indeed, “[a]
police officer with the ability to do so must intervene
to stop another police officer’s use of excessive force.”
Grimes v. Yoes, 298 F. App’x 916, 921 (11th Cir. 2008)
(per curiam) (citing Priester v. City of Riviera Beach,
Fla., 208 F.3d 919, 924-25 (11th Cir. 2000)). But, a
civil rights plaintiff must include facts showing the
“real opportunity” for the officers to intervene in the
alleged unlawful conduct. See Keating v. City of
Miami, 598 F.3d 753, 764 (11th Cir. 2010) (citation
omitted). Also, the plaintiff “has the burden to
demonstrate that the defendant was in a position to
intervene but failed to do so.” Ledlow v. Givens, 500 F.
App’x at 914.
Of importance, “[t]he Fourth Amendment
guarantees ‘[t]he right of the people to be secure in
App-62
their persons, houses, papers, and effects, against
unreasonable searches and seizures . . . .’ U.S. Const.
amend. IV.” Walters v. Freeman, 572 F. App’x 723, 727
(11th Cir. July 16, 2014) (per curiam). In order to
demonstrate a Fourth Amendment violation against
Defendants Kremler, Williams, and Schoonover,
Plaintiff must show that each one had a real
opportunity to intervene, the ability to intervene, and
was in a position to actually intervene, but failed to do
so.
Defendant Schoonover asserts that Plaintiff has
failed to establish that he was in a position to
intervene. Based on the record before the Court,
Defendant Schoonover was not present when Plaintiff
was arrested and taken into custody. He arrived after
Plaintiff was taken into custody, he did not have any
contact with Plaintiff or the officers at the scene, and
he did not hear or see any of the officers’ actions
constituting the alleged use of excessive force.
Based on Defendant Schoonover’s Declaration, he
has discharged his initial burden of showing that
there are no genuine issues of material fact with
respect to the failure to protect claim. Plaintiff is
obligated to go beyond the pleadings to designate
specific facts showing that there remains a genuine
issue for trial, and based on the record before the
Court, Defendant Schoonover is not entitled to
summary judgment on this claim. Simply, Plaintiff
must show that the supervisor had the ability to
intervene but failed to do so.
In the Complaint, Plaintiff says “Defendant
Schnoover [sic] was the apparent supervisor at the
scene and failed to act[.]” In his Response to
App-63
Schoonover’s Motion for Summary Judgment (Doc.
55), Plaintiff does not attempt to challenge
Schoonover’s assertion that he was not at the scene
and he had no opportunity or position to intervene.
Upon review, there is no evidence or support for the
claim that Defendant Schoonover observed an
excessive use of force or had the opportunity or
position to be able to intervene to prevent abuse.
Schoonover did not arrive at the scene until after
Plaintiff was in custody. Therefore, Plaintiff has failed
to meet his burden and Defendant Schoonover is
entitled to summary judgment on this claim.
Although not a model of clarity, Plaintiff makes
some mention of “deprivation of his good name” as part
of his Fourth Amendment claim. Complaint at 5.
Plaintiff is apparently making some attempt to allege
that Defendant Schoonover, by reporting to media
outlets concerning the status of the murder
investigation and responding to questions from the
media on behalf of the Jacksonville Sheriff’s Office,
made remarks which damaged Plaintiff’s reputation.
This assertion does not constitute a constitutional
claim under the Fourth Amendment, or even the
Fourteenth
Amendment. 14
Thus,
Defendant
Schoonover’ s Motion for Summary Judgment with
14 A defamation claim, a state tort claim, does not give rise a
constitutional due process claim under the Fourteenth
Amendment, “unless there is an additional constitutional injury
alleged.” Rehberg v. Paulk, 611 F.3d 828, 851 (11th Cir. 2010)
(citation omitted). Here, Plaintiff has not alleged additional
constitutional injury in this regard. Injury to reputation is simply
not enough to constitute a Fourteenth Amendment violation of
deprivation of liberty or property interests. Id. (citations
omitted).
App-64
respect to this claim for the alleged deprivation of
Plaintiff’s good name is due to be granted.
Plaintiff submitted a verified Complaint, and both
parties submitted various documents and supporting
evidence, including affidavits and/or declarations,
videos, and records to support their respective
positions. Defendants Kremler and Williams’ Motion
for Summary Judgment will be denied with respect to
Plaintiff claim of failure to intervene and protect him
from the excessive use of force of the other officers. The
video footage supports Plaintiff’s contention that
Kremler and Williams were both in close proximity to
the event, were fully aware of the takedown, and
observed much, if not all of the arrest incident. There
remain genuine issues of material fact that prevent
the entry of summary judgment on their behalf.
With regard to the issue of deprivation of medical
care, “delay in medical treatment must be interpreted
in the context of the seriousness of the medical need,
deciding whether the delay worsened the medical
condition, and considering the reason for delay.” Hill
v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1189
(11th Cir. 1994), abrogated on other grounds by Hope
v. Pelzer, 536 U.S. 730 (2002). “Delayed treatment for
injuries that are of a lesser degree of immediacy than
broken bones and bleeding cuts, but that are obvious
serious medical needs, may also give rise to
constitutional claims.” Harris v. Coweta County, 21
F.3d 388, 394 (11th Cir. 1994).
Plaintiff did not see a certified medical assistant
until approximately nine hours after he was injured.
There is no reasonable explanation provided for this
extraordinary delay in providing Plaintiff with some
App-65
medical attention. 15 The medical assessment at the
pretrial detention facility apparently included the
taking of some oral history, making a visual
assessment of Plaintiff’s injuries, and taking
Plaintiff’s vital signs. It is not stated in the record
whether Plaintiff removed his clothing for the
examination. The Court also notes that a certified
medical assistant did the examination, not a nurse,
physician’s assistant, or doctor.
A genuine issue of fact has been raised whether
this delay amounted to deliberate indifference to a
serious medical need. During the post-arrest
interviews, Plaintiff told the officers he could not
remember much of the incident, and did not remember
being taken down by the police. In fact, he stated that
he thought he may have been in an altercation in the
restaurant. He also told the police he had been
drinking and thought that he may have been drugged.
He mentioned that he suffered previous black outs
The Office of the Sheriff’s Response to Resistance Policy
submitted to the Court by Defendants states “[o]fficers and
supervisors will be required to obtain medical evaluations
Jacksonville Fire and Rescue Department (JFRD), nurse at the
Pretrial Detention Facility (PDF), etc.) [sic] as soon as possible or
practical, for individuals: 1. Who show signs of any injury as a
result of any use of force being applied[.]” Defendants’
Exhibit 2 at 2-3 (Doc. 39-2 at 11-12) (emphasis added).
Additionally, it requires a medical evaluation if the individual
becomes “unconscious either during or following the
application of any force [.]” Defendants’ Exhibit 2 at 3 (Doc.
39-2 at 12) (emphasis added). Plaintiff told the officers in the
interview room he believed he was rendered unconscious, and he
advised them he could not remember the officers taking him
down and restraining him. Also of note, Plaintiff fell or dropped
to the ground after the use of force.
15
App-66
from excessive intoxication in the distant past. He also
believed that he had been rendered unconscious at
some point. In Plaintiff’s verified Complaint, he states
he suffered injuries including some lacerations and
bruises and swelling on the side of his face and upper
parts of his body. 16 He also relates that he suffered
injuries to his ear and developed chronic migraines as
a result of the beating. 15 Id.
Plaintiff had visible injuries after force was used
during the arrest. No medical care was provided at the
scene, even after Plaintiff fell to the ground after an
officer stood him up. See Defendants’ Exhibit 8,
Kremler’s Declaration, at 3. Defendant Schoonover
admits in his Declaration that he saw Plaintiff in the
interview room and inquired about Plaintiff’s visible
facial injuries. Instead of seeking medical attention for
Plaintiff or requiring that he be immediately seen and
16 See Stallworth v. Tyson, 578 F. App’x 948, 950 (11th Cir.
2014) (per curiam) (citations omitted) (“The factual assertions
that [Plaintiff] made in his amended complaint should have been
given the same weight as an affidavit, because [Plaintiff] verified
his complaint with an unsworn written declaration, made under
penalty of perjury, and his complaint meets Rule 56’s
requirements for affidavits and sworn declarations.”).
15 In his deposition, Plaintiff states that he was suffering from
pain in his face in the interview room. Defendants’ Exhibit 17 at
104. The next day he said he had pain in his shoulder and his
body ached. Id. at 104-105. He did not recall asking for medical
attention in the interview room. Id. at 105. Plaintiff explained
that it was obvious that he needed medical attention because “the
side of my face was swollen and bleeding.” Id. at 107. At one point
in the interview room, Plaintiff’s wife enters the room, has a
conversation with her husband, and then says “[d]on’t bleed on
me.” Defendants’ Exhibit 19 at 30. Plaintiff’s wife also dabs his
face with a tissue or cloth, as displayed on the videotape.
App-67
examined, Schoonover simply asked the sergeant
about the injuries, and the sergeant responded that
Plaintiff had said he was okay. Defendants’ Exhibit 14
at 2. Of course the officers in the interview room had
been told that Plaintiff believed that he had been
rendered unconscious and he could not remember
anything after he put his hands up when he was first
confronted by the police in his truck.
The Court recognizes that the arrest involved a
very serious crime and a potentially dangerous
situation for the police officers. The question remains
whether the application of force was objectively
unreasonable if Plaintiff can show he had already
submitted to the officers’ commands, he did not resist,
and the actions of the Defendants caused Plaintiff to
suffer injuries. In this instance, the photographs and
videos filed with the Court reflect that Plaintiff has
visible contusions/abrasions to his face and scrapes on
his legs. Plaintiff admitted that he had been drinking
(approximately eight beers). He could not remember
being taken down to the ground by the police or the
details of his arrest. He told the officers he thought
that he had been rendered unconscious during the
arrest. Indeed, he fell to the ground after he was lifted
up off of the ground by a police officer. His wife, when
she visited him in the interview room, asked him not
to bleed on her and dabbed his facial injuries.
The question remains as to whether Plaintiff
posed an immediate threat to the safety of the officers
or others and whether Plaintiff was actively resisting
arrest. Material facts are disputed with respect to the
excessive force claim (against Defendants Anderson
and Bias), the failure to protect claim (against
App-68
Defendants Kremler and Williams), and the
deprivation of medical care claim (against Anderson,
Bias, Kremler, Williams, and Schoonover). However,
the Court concludes that Defendant Schoonover’s
Motion for Summary Judgment will be granted with
respect to Plaintiff’s Fourth Amendment failure to
protect claim against him and the deprivation of good
name claim against him, but it is denied with respect
to the deprivation of medical care claim against him
as there are disputed material facts.
VI. Qualified Immunity
The Defendants assert that they are entitled to
qualified immunity from monetary damages in their
individual capacities with regard to the excessive
force, failure to protect, and deprivation of medical
care claims. Defendants’ Motion (Doc. 41) at 22-25;
Defendants’ Motion (Doc. 42) at 15-19. It is undisputed
that the Defendants were engaged in discretionary
functions during the events at issue. Given the
conclusion that summary judgment should be denied
as to the Fourth Amendment claim against
Defendants Anderson and Bias for the excessive use of
force, as to the Fourth Amendment claim against
Defendants Kremler and Williams for failure to
protect, and as to the deliberate indifference claim
against Defendants Anderson, Bias, Kremler,
Williams, and Schoonover, and based on the state of
the law on qualified immunity in the Eleventh Circuit,
qualified immunity should be denied as to Defendants
Anderson, Bias, Kremler, Williams, and Schoonover,
except with respect to the Fourth Amendment claim of
failure to protect against Defendant Schoonover.
App-69
To defeat qualified immunity with respect to
Defendant Schoonover, Plaintiff must show both that
a constitutional violation occurred and that the
constitutional right violated was clearly established.
Fennell v. Gilstrap, 559 F.3d 1212, 1216 (11th Cir.
2009) (per curiam). Since Defendant Schoonover was
acting within the scope of his discretionary authority
when the alleged failure to intervene occurred, the
burden is on Plaintiff to show that the Defendant is
not entitled to qualified immunity. Skop v. City of
Atlanta, 485 F.3d 1130, 1136-37 (11th Cir.), reh’g and
reh’g en bane denied, 254 F. App’x 803 (11th Cir. 2007).
Here, a reasonable jury could not find that the
Defendant Schoonover violated Plaintiff’s Fourth
Amendment rights by failing to intervene; therefore,
Defendant Schoonover is entitled to qualified
immunity.
Because Defendant Schoonover did not commit a
Fourth Amendment violation, he is entitled to
qualified immunity with respect to that claim. See
Hadley v. Gutierrez, 526 F.3d 1324, 1331 (11th Cir.
2008) (citing Priester v. City of Riviera Beach, Fla., 208
F.3d 919, 924 (11th Cir. 2000) (finding the plaintiff
failed to present evidence from which a reasonable
jury could find that the defendant could have stopped
the use of force); Ensley v. Soper, 142 F.3d 1402, 1408
(11th Cir. 1998) (concluding that no reasonable juror
could find that the defendant was in a position to
intervene and finding “no evidence that might lead a
reasonable juror to conclude that [the defendant]
violated any clearly established right of [the plaintiff]
to intervention.”). Plaintiff did not meet his burden to
demonstrate that Schoonover had a real opportunity
to intervene/protect and was in a position to
App-70
intervene/protect, but failed to do so. Thus, Defendant
Schoonover is entitled to qualified immunity with
respect to the Fourth Amendment claim of failure to
protect.
Accordingly, it is now
DONE AND ORDERED:
1. Defendant Schoonover’s Motion for Final
Summary Judgment (Doc. 42) is GRANTED with
respect to Plaintiff’s Fourth Amendment failure to
protect claim and to Plaintiff’s deprivation of good
name claim and DENIED in all other respects.
2. Defendants Kremler and Williams’ Motion for
Final Summary Judgment (Doc. 42) is DENIED.
3. Defendants Anderson and Bias’ Final Motion
for Summary Judgment (Doc. 41) is DENIED.
4. The Court finds that Plaintiff is entitled to the
appointment of counsel. Previously, the Court denied
Plaintiff’s motion for appointment of counsel without
prejudice, noting that the Court would be willing to
consider the request for counsel at a later date. Order
(Doc. 70). This Court has broad discretion in
determining whether the appointment of counsel is
appropriate. Under these circumstances and at this
point in the proceedings, the Court finds that Plaintiff
is entitled to the assistance of a trained practitioner.
Plaintiff needs the assistance of counsel for a
settlement conference and he needs assistance in
preparing for a jury trial, if the case proceeds to trial,
and in selecting a jury and presenting the case to a
jury. Therefore, this case is referred to the
Jacksonville
Division
Civil
Pro
Bono
Appointment Program so that the designated
App-71
deputy clerk of the Court may seek counsel to
represent Plaintiff.
5. Since the search for an attorney for Plaintiff
may be a lengthy process, this case is STAYED until
counsel is appointed. Upon counsel’s filing a Notice of
Appearance, the stay will be lifted, and the case will
be reopened.
6. The Clerk shall administratively close this
case.
DONE AND ORDERED at
Florida, this 24th day of May, 2016.
Jacksonville,
s/
UNITED STATES DISTRICT JUDGE
App-72
Appendix C
UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________
No. 16-14112-GG
________________
MATTHEW REID HINSON,
v.
Plaintiff-Appellee,
R.A. BIAS, OFFICER #61580,
B.K. KREMLER, OFFICER #64398,
S.T. WILLIAMS, OFFICER #64402,
Z.M. ANDERSON, OFFICER #67377,
ROB SCHOONOVER, LT. #6434,
Defendants-Appellants.
________________
Appeal from the United States District Court
for the Middle District of Florida
________________
August 14, 2019
________________
ON PETITION(S) FOR REHEARING AND
PETITION(S) FOR REHEARING EN BANC
BEFORE: JORDAN, ROSENBAUM, and DUBINA,
Circuit Judges.
PER CURIAM:
The Petiton(s) for Rehearing are DENIED and no
Judge in regular active service on the Court having
requested that the Court be polled on rehearing en
App-73
banc (Rule 35, Federal Rules of Appellate Procedure),
the Petition(s) for Rehearing En Banc are DENIED.
ENTERED FOR THE COURT:
s/
UNITED STATES CIRCUIT JUDGE
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