Opinion
Case No: 8:16-cv-2527-T-30JSS
05-21-2018
TINA J. SANCHEZ, Plaintiff, v. HARODIS NUNEZ, HARODIS NUNEZ, ELVON HOSPEDALES, ELVON HOSPEDALES and GRADY JUDD, Defendants.
The Order is only amended to reflect that Plaintiff's claim against Defendant Grady Judd is for vicarious liability for battery, not excessive force. --------
THIS CAUSE comes before the Court upon Defendant Grady Judd's Motion for Summary Judgment (Dkt. 26) and Plaintiff's Response (Dkt. 39); Defendant Elvon Hospedales' Motion for Summary Judgment (Dkt. 27) and Plaintiff's Response (Dkt. 38); Defendant Harodis Nunez's Motion for Summary Judgment (Dkt. 28) and Plaintiff's Response (Dkt. 37); and Plaintiff's Motion to Strike or Limit Testimony (Dkt. 37) and Defendants' Response (Dkt. 36). The Court, having reviewed the Motions and Responses, and being otherwise advised in the premises, concludes that Defendants' Motions should be granted, and Plaintiff's Motion should be denied.
BACKGROUND
On August 30, 2012, Tina Sanchez ("Plaintiff") and her aunt, Janet Santiago ("Santiago"), went out drinking. Santiago drove them home around 11 p.m. On their way home, a deputy sheriff from the Polk County Sheriff's Office ("Houser") pulled behind Santiago's vehicle and flashed his lights. Santiago did not pull over, so Santiago and Houser engaged in a "low-speed chase" for about one mile. (Dkt. 33, p. 37). Defendant Elvon Hospedales ("Hospedales") received a dispatch about a potentially intoxicated driver, and he followed Santiago's vehicle behind Houser.
When Santiago finally pulled over, Houser asked her to step out of the vehicle so he could assess her. Plaintiff was still in the car. Hospedales walked over to Plaintiff, who was yelling and screaming obscenities. Plaintiff testified she was nervous for her aunt, intoxicated, and acting more aggressive than usual. According to Hospedales, during Houser's assessment of Santiago, Plaintiff tried to exit the vehicle "continuously." (Dkt. 30, p. 12). Plaintiff testified that she tried to exit the car at least three times. Each time, Hospedales told her to remain inside.
Defendant Harodis Nunez ("Nunez") also responded to the dispatch as backup. When he arrived, he took over interacting with Plaintiff while Hospedales stood with Houser. According to Nunez, Plaintiff tried to get out of the car several times. Nunez told Plaintiff to stay inside, but at some point, he told Plaintiff to exit the vehicle. Plaintiff hesitated because she was confused about Nunez's direction and worried about being arrested. Nunez pulled Plaintiff out of the vehicle by her right arm and pulled out handcuffs.
According to Plaintiff, before Nunez handcuffed her, she told him that she recently had surgery on her upper right arm. Plaintiff was referring to surgery she had after she was injured in a car accident in 2009. In the accident, she broke her right femur and radius and suffered a complete brachial plexus injury. Plaintiff describes her right arm as paralyzed, but subsequent surgeries, including nerve and tendon transfers, restored some function to her right shoulder and elbow. Plaintiff testified that her arm has been unusable since the 2009 accident.
Plaintiff asked Nunez to handcuff her in the front of her body. In her deposition, Plaintiff recalled telling the officer "wait you can't cuff me" because her arm is "paralyzed" and "can't go back." (Dkt. 33, p. 50, 54). Plaintiff testified that in response, Nunez said "I can do what I want. I'm the law." Id. at p. 51.
Hospedales saw Nunez attempting to handcuff Plaintiff outside of the vehicle. He testified that Plaintiff was "flailing" both arms and "bracing" to avoid being arrested. (Dkt. 30, p. 14-15). Hospedales walked over to assist Nunez. To handcuff Plaintiff, Nunez held Plaintiff's right arm and Hospedales held Plaintiff's left arm. Plaintiff testified that the officer who pulled her left arm back "slammed [her] on the car." (Dkt. 33, p. 50). Then, according to Plaintiff, Nunez "suddenly, gratuitously, offensively and violently yanked [Plaintiff's] right arm back and forced it upward." (Dkt. 15, p. 4). Plaintiff heard her right arm snap and Nunez handcuffed Plaintiff behind her back.
Nunez placed Plaintiff in the back of a police car and asked why she was crying. Plaintiff said she heard her right arm snap. Nunez removed the handcuffs from Plaintiff and handcuffed her again, this time placing her arms in front of her body. Nunez offered to call an ambulance, but Plaintiff refused. Nunez then called a paramedic to examine her. The paramedic found no bruising or injury on Plaintiff's arm. X-rays from after the arrest show that Plaintiff suffered a spiral fracture of her distal right humerus and required surgical repair. Plaintiff was charged with obstruction of an officer without violence.
Plaintiff filed this lawsuit for: excessive force in violation of 42 U.S.C. § 1983 against Nunez (Count I), battery against Nunez (Count II), battery against Grady Judd (Count III), and failure to protect in violation of 42 U.S.C. § 1983 against Hospedales (Count IV).
SUMMARY JUDGMENT STANDARD
Motions for summary judgment should be granted only when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The existence of some factual disputes between the litigants will not defeat an otherwise properly supported summary judgment motion; "the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (emphasis in original). The substantive law applicable to the claimed causes of action will identify which facts are material. Id. Throughout this analysis, the court must examine the evidence in the light most favorable to the non-movant and draw all justifiable inferences in its favor. Id. at 255.
Once a party properly makes a summary judgment motion by demonstrating the absence of a genuine issue of material fact, whether or not accompanied by affidavits, the nonmoving party must go beyond the pleadings through the use of affidavits, depositions, answers to interrogatories and admissions on file, and designate specific facts showing that there is a genuine issue for trial. Celotex, 477 U.S. at 324. The evidence must be significantly probative to support the claims. Anderson, 477 U.S. at 248-49 (1986).
This Court may not decide a genuine factual dispute at the summary judgment stage. Fernandez v. Bankers Nat'l Life Ins. Co., 906 F.2d 559, 564 (11th Cir. 1990). "[I]f factual issues are present, the Court must deny the motion and proceed to trial." Warrior Tombigbee Transp. Co. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th Cir. 1983). A dispute about a material fact is genuine and summary judgment is inappropriate if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248; Hoffman v. Allied Corp., 912 F.2d 1379 (11th Cir. 1990). However, there must exist a conflict in substantial evidence to pose a jury question. Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1045 (11th Cir. 1989).
DISCUSSION
The parties do not dispute that at the time of her arrest Plaintiff suffered from a pre-existing condition of her right arm. The Court looks to whether Nunez used excessive force during Plaintiff's arrest, since the answer resolves each Defendant's motion. Excessive Force Standard
A § 1983 claim of excessive force is analyzed under the Fourth Amendment's reasonableness standard. Davis v. Williams, 451 F.3d 759, 767 (11th Cir. 2006). "In order to determine whether the amount of force used by a police officer was proper, a court must ask whether a reasonable officer would believe that this level of force is necessary in the situation at hand." Lee v. Ferraro, 284 F. 3d 1188, 1197 (11th Cir. 2002) (citations omitted). The question is an objective one. Id. at 1198, n.7.
The Eleventh Circuit has identified a number of factors to look to when determining the reasonableness of an officer's force including (1) the severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether the suspect is actively resisting arrest or attempting to evade arrest by flight. Graham v. Connor, 490 U.S. 386, 389 (1989). The analysis also takes into consideration the need for the application of force, the relationship between the need and the amount used, and the extent of the injury inflicted. Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008); Stephens v. DeGiovanni, 852 F. 3d 1298, 1324 (11th Cir. 2017). Whether Nunez Used Excessive Force
Some facts about Plaintiff's arrest are in dispute. But the Court accepts Plaintiff's version of the facts at this stage. That includes Hospedales slamming Plaintiff onto a car and Plaintiff telling officers before her arrest that she had surgery on her arm and her arm was paralyzed and couldn't go back.
Even based on Plaintiff's version of the facts, Nunez did not use excessive force during Plaintiff's arrest. Courts in this circuit have decided cases where arresting officers used more force than Nunez and their force was not excessive. See e.g., Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000) (finding force to be de minimis where an officer grabbed the plaintiff "from behind by the shoulder and wrist, threw him against a van three or four feet away, kneed him in the back and pushed his head into the side of the van, searched his groin area in an uncomfortable manners, and handcuffed him."); Croom v. Balkwill, 672 F. Supp. 2d 1280, 1296 (M.D. Fla. 2009) (finding no excessive force after plaintiff informed officers she had arthritis and couldn't get to the ground quickly, so an officer placed her foot on plaintiff's back and pushed her to the ground causing injuries that required surgeries to plaintiff's neck and back).
The case of Secondo v. Campbell is in many ways similar to Plaintiff's. 327 F. App'x 126 (11th Cir. 2009). Secondo was arrested for a "relatively minor infraction." Id. at 132. Before his arrest, he informed officers that he recently had shoulder surgery and couldn't place his hands behind his back. Id. at 128. But the arresting officer twisted Secondo's arms behind his back, handcuffed him, and moved him to the back of a patrol car forcefully. Id. Secondo was "reeling in pain" and pleaded for the officer to remove his handcuffs. Id. The officer moved the handcuffs to the front of Secondo's body. Id. Secondo claimed the arrest aggravated his pre-existing right shoulder injury and also caused a "fresh injury" to his left shoulder. Id. at 132.
The Eleventh Circuit determined that the officer's use of force in Secondo was de minimus. The court also found it "notable" that the officer readjusted Secondo's handcuffs when he expressed discomfort. Id. at 6. The court recognized that although Secondo informed the officer about his injury before being handcuffed, "a police officer need not credit everything a suspect tells him...and this idea is especially true when the officer is in the process of handcuffing a suspect." Id. at 5. (citing Rodriguez v. Farrell, 294 F. 3d 1276, 1278 (11th Cir. 2012).
Similarly, Plaintiff was arrested for a minor offense. She informed officers of her shoulder surgery and paralyzed arm before her arrest. Officers put Plaintiff's hands behind her back, despite her wishes, and placed her in the back of a police car. When Plaintiff expressed discomfort, an officer removed Plaintiff's handcuffs and handcuffed her in the front of her body. But unlike in Secondo, Plaintiff tried to exit Santiago's vehicle multiple times. This fact weighs against Plaintiff in the analysis of officers' force during her arrest.
Other factors used to determine the reasonableness of an officer's force also weigh against Plaintiff. For example, when Plaintiff attempted to step out of the vehicle multiple times against officers' directions, officers did not know if Plaintiff had any weapons on her or in the vehicle. Plaintiff was also yelling and screaming obscenities during the encounter. And, as for the extent of the force, officers used a standard handcuffing technique to restrain Plaintiff. Assuming Hospedales slammed Plaintiff on a vehicle before her arrest, this fact does not transform Nunez's reasonable force to a constitutional violation.
Although Plaintiff was injured as a result of the arrest, "reasonable force does not become excessive force when the force aggravates (however severely) a pre[-]existing condition ... unknown to the officer at the time." Lee, 284 F.3d at 1200. See also Schultz v. Hall, 365 F. Supp. 2d 1218, 1222 (N.D. Fla. 2005) (holding that a hairline fracture of plaintiff's left humerus after plaintiff told officers of her pre-existing condition and officers "yanked" plaintiff's arm behind her during arrest "does not, as Plaintiff apparently would have it, mean ipso facto that the force used was excessive."). Plaintiff testified that she told Nunez about her surgery and injury before her arrest. But Nunez did not know the extent of Plaintiff's pre-existing condition. See Croom, 672 F. Supp. 2d at 1299. Notably, Plaintiff acknowledged that she had never been told her bones were fragile. See (Dkt. 33, p. 57). It would unreasonable to expect Nunez to know the extent of Plaintiff's condition when Plaintiff did not. Even if Nunez did know the extent of her injury, his level of force during Plaintiff's arrest was objectively reasonable. Plaintiff's Remaining Claims
Because the Court concludes that Nunez did not use excessive force during Plaintiff's arrest, Hospedales cannot be liable for failure to intervene.
Plaintiff also sued Nunez for battery. "A battery claim for excessive force is analyzed by focusing upon whether the amount of force used was reasonable under the circumstances." Sullivan v. City of Pembroke Pines, 161 F. App'x 906, 911 (11th Cir. 2006) (citing City of Miami v. Sanders, 672 So. 2d 46, 47 (Fla.Dist.Ct.App.1996)) (citations omitted) (emphasis added). If Nunez's force was "clearly excessive" and not "reasonable under the circumstances," he may be liable for assault and battery under Florida law. Christie ex rel. estate of Christie v. Scott, 923 F. Supp. 2d 1308, 1329 (M.D. Fla. 2013) (citing Sanders, 672 So. 2d at 47). But for the same reasons the Court concluded Nunez's force was not excessive, the Court concludes that it was not "clearly excessive." No reasonable jury could find Nunez liable for battery under these circumstances. Because of this, Judd cannot be held vicariously liable for battery by Nunez.
Upon review and consideration, it is therefore
ORDERED AND ADJUDGED that:
1. Defendant Grady Judd's Motion for Summary Judgment (Dkt. 26); Defendant Elvon Hospedales' Motion for Summary Judgment (Dkt. 27); and Defendant Harodis Nunez's Motion for Summary Judgment (Dkt. 28) are GRANTED.
2. Plaintiff's Motion to Strike or Limit Testimony (Dkt. 37) is DENIED.
3. The Clerk is directed to enter judgment in favor of Defendants and against Plaintiff.
4. The Clerk is directed to close this case.
DONE and ORDERED in Tampa, Florida, this 21st day of May, 2018.
/s/ _________
JAMES S. MOODY, JR.
UNITED STATES DISTRICT JUDGE Copies furnished to:
Counsel/Parties of Record