Initial brief filed in the Eleventh Circuit Court of Appeals in a case concerning civil rights violations resulting from excessive force and deliberate indifference
Initial brief filed in the Eleventh Circuit Court of Appeals in a case concerning civil rights violations resulting from excessive force and deliberate indifference
Initial brief filed in the Eleventh Circuit Court of Appeals in a case concerning civil rights violations resulting from excessive force and deliberate indifference
INITIAL BRIEF OF APPELLANT, NORREL SUTHERLAND ___________________________________
DANIEL S. WEINGER Florida Bar No. 172900 dweinger@conradscherer.com GREGORY R. BARTHELETTE Fla. Bar No.: 791296 gbarthelette@conradscherer.com CONRAD & SCHERER, LLP Attorneys for Appellant 633 South Federal Highway Fort Lauderdale, Florida 33301 Telephone: (954) 462-5500 Facsimile: (954) 463-9244 ii Certificate of Interested Persons and Corporate Disclosure Statement Appellant, Norrel Sutherland, certifies that the following persons and entities have or may have an interest in the outcome of this appeal: William R. Scherer, III, Daniel S. Weinger, and Gregory R. Barthelette of Conrad & Scherer - Attorneys for Plaintiff/Appellant, Norrel Sutherland
Neal Hirschfeld of Greenspoon Marder, P.A. Co-counsel for Plaintiff/Appellant, Norrel Sutherland
Fred H. Gelston, P.A. - Attorney for Defendants/Appellees Deputy Brian Allison - Defendant/Appellee Deputy Max Perez Pizarro - Defendant/Appellee Rick L. Bradshaw - Sheriff of Palm BeachCounty, Florida
The Honorable James I. Cohn District Court Judge Barry S. Seltzer - Chief Magistrate Judge iii Statement Regarding Oral Argument Appellee, Norrel Sutherland, requests oral argument to address any questions or concerns that this Court may have with regard to facts and arguments raised in this appeal. Appellant believes oral argument is appropriate because this appeal involves complex issues regarding constitutional rights. iv Table of Contents Certificate of Interested Persons and Corporate Disclosure Statement .......... ii Statement Regarding Oral Argument ............................................................ iii Table of Contents ........................................................................................... iv Table of Authorities ........................................................................................ v Statement of Jurisdiction .............................................................................. vii Statement of the Issues ................................................................................... 1 Introduction ..................................................................................................... 2 Statement of the Case ..................................................................................... 3 A. Course of Proceedings and Dispositions in the Court Below ............... 3 B. Statement of the Facts .......................................................................... 4 C. Standard of Review ............................................................................ 13 Summary of the Argument ........................................................................... 14 Argument ...................................................................................................... 16 I. The District Court Erred in Finding That There was Insufficient Evidence to Create a Material Issue of Fact as to Whether Allison and Perez Used Excessive Force when Handcuffing Sutherland .................... 16 A. Sutherland Sufficiently Established that Allison and Perez Violated his Constitutional Right to be Free from Excessive Force by Breaking his Arm ................................................................................................. 18 B. Sutherland Sufficiently Established that Allison and Perez Also Violated his Constitutional Right to be Free from Excessive Force by Slamming him Against a Van and then Leaving his Hands Cuffed Behind his Back for Forty-Six Minutes After Breaking his Arm Despite his Repeated Pleas for Help .................................................................. 33 II. The District Court Erred in Granting Allison and Perez Summary Judgment on Sutherlands deliberate indifferEnce Claim ........................ 34 Conclusion .................................................................................................... 39 Certificate of Compliance ............................................................................. 40 Certificate of Service .................................................................................... 40 v Table of Authorities Cases Bozeman v. Orum, 422 F.3d 1265 (11th Cir. 2005) .......................................................... 22, 35 Brown v. City of Hialeah, 30 F. 3d 1433 (11th Cir. 1994) ................................................................. 22 Brown v. Hughes, 894 F.2d 1533 (11th Cir. 1990) .............................................. 35, 36, 37, 39 Burnette v. Taylor, 533 F.3d 1325 (11th Cir. 2008) ................................................................ 35 Davis v. Williams, 451 F.3d 759 (11th Cir. 2006) ........................................................... passim Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285 (1976) .............................................................. 35 Evans v. Stephens, 407 F.3d 1272 (11th Cir. 2005) ................................................................ 22 Farrow v. West, 320 F.3d 1235 (11th Cir. 2003) ................................................................ 35 Goebert v. Lee County, 510 F.3d 1312 (11th Cir. 2007) ................................................................ 36 Harlow v. Fitzgerald, 457 U.S. 800 (1982) .................................................................................. 17 Harris v. Coweta County, 21 F.3d 388 (11th Cir. 1994) .................................................................... 36 Hope v. Pelzer, 536 U.S. 730 (2002) .................................................................................. 18 Lee v. Ferraro, 284 F.3d 1188 (11th Cir. 2002) ................................................................ 33 Lloyd v. Tassell, 318 Fed. Appx. 755 (11th Cir. 2009) ........................................................ 17 Mercado v. City of Orlando, 407 F.3d 1152 (11th Cir. 2005) ................................................................ 16 vi Nolin v. Isbell, 207 F.3d 1253 (11th Cir. 2000) ................................................................ 17 Reeves v. Sanderson Plumbing Prods., Inc. 530 U.S. 133 (2000) .................................................................................. 24 Rodriguez v. Farrell, 280 F.3d 1341 (11th Cir. 2002) ......................................................... passim Scala v. City of Winter Park, 116 F.3d 1396 (11th Cir. 1997) ................................................................ 13 Secondo v. Campbell, 327 Fed. Appx. 126 (11th Cir. 2009) ............................................ 28, 29, 30 Skritch v. Thornton, 280 F.3d 1295 (11th Cir. 2002) ................................................................ 19 Smith v. Mattox, 127 F.3d 1416 (11th Cir. 1997) .............................................. 18, 19, 30, 31 Tatum v. Jackson, 2009 WL 3633975 (S.D.N.Y.) .................................................................. 24 U.S. v. Urban, 404 F.3f 754 (3rd Cit. 2005) ..................................................................... 24 Wilson v. United States, 162 U.S. 613, 16 S.Ct. 895 (1896) ............................................................ 24 Statutes 28 U.S.C. 1291 ............................................................................................ vii 42 U.S.C. 1983 ........................................................................................ 3, 16 Rules Fed. R. App. P. 32 ................................................................................... 39, 40
vii Statement of Jurisdiction This case involves an appeal of a final order granting summary judgment in favor of Defendants, Deputies Brian Allison and Max Perez. This Court has jurisdiction pursuant to 28 U.S.C. 1291.
1 Statement of the Issues I. WHETHER TWO POLICE OFFICERS USED EXCESSIVE FORCE BY BREAKING AN ARRESTEES ARM DURING HANDCUFFING AND THEN LEAVING HIS BROKEN ARM BEHIND HIS BACK FOR NEARLY AN HOUR
II. WHETHER TWO POLICE OFFICERS WERE DEILBERATELY INDIFFERENT TO AN ARRESTEES NEED FOR IMMEDIATE MEDICAL ASSISTANCE BY BREAKING HIS ARM AND THEN LEAVING IT CUFFED BEHIND HIS BACK FOR NEARLY AN HOUR WITHOUT RESPONDING TO HIS REPEATED REQUESTS FOR MEDICAL ASSISTANCE 2 Introduction This is an appeal by the Appellant, Norrel Sutherland (Sutherland, Plaintiff, or Appellant), from an order granting final summary judgment in favor of the Appellees, Deputies Brian Allison and Max Perez (Allison, Perez, or, collectively, Defendants or Appellees). The following symbols will be used: (R.) Record on Appeal. All emphasis is supplied by counsel unless otherwise indicated. 3 Statement of the Case A. COURSE OF PROCEEDINGS AND DISPOSITIONS IN THE COURT BELOW This case stems from a violent and brutal arrest in which Deputies Brian Allison and Max Perez broke Norrel Sutherlands right arm, causing permanent damage. (R. 14) As a result of the incident, Mr. Sutherland brought claims pursuant to 42 USC 1983 against Deputies Allison and Perez for violating his constitutional rights to be free from excessive force and deliberate indifference, and for failure to provide reasonable accommodations in violation of the Americans with Disabilities Act. 1 (R. 14 at 1, 32-41) Sutherland also brought Florida common law claims for battery against the Palm Beach Sheriffs Office. (R. 14 at 42-46) Additionally, Sutherlands wife, Nadina Sutherland, brought a Florida common law claim for loss of consortium. (R. 14 at 1, 47-48) Upon the close of discovery, the district court granted the Defendants Motion for Summary Judgment as to all of the Sutherlands federal claims, but remanded to state court the Florida common law claims. (R. 35)
1 The claims under the Americans with Disabilities Act have been abandoned in this appeal. 4 B. STATEMENT OF THE FACTS General Background In the early morning hours of February 17, 2008, Norrel Sutherland arrived at the Lake Worth Swap Shop at around 6:00 am, parking his van on a two lane road located next to the establishment. (R. 23-1, p. 29, lines 18-20) Sutherland believed that this was an appropriate place to leave his vehicle as a result of having previously parked in this same area without incident. (R. 23-1, p. 25, lines 14-17; p. 34, lines 22-24) As Sutherland has a physical disability, he obtained a handicap parking permit that prominently hung from the rear-view mirror of his van. (R. 23-1, p. 62, lines 6-20) The underlying disability arose from a work-related accident in 1994 in which Sutherland became entangled in the cable spool of a crane. (R. 23-1, p. 13, lines 19-25; p. 14, lines1-8) As a result, Sutherlands right arm and shoulder sustained serious injuries (R. 27-1, p. 13, lines 19-22), causing Sutherland an inability to actively move his right arm and a limited passive range of overall motion. (R. 27-1, pp. 13-15, 2) Further, Sutherlands arm could not go behind his back, either actively or passively. (R. 27-1, pp. 13-15, 2) Even though he wore a long-sleeve shirt to the Swap Shop, the preexisting injury to Sutherlands right arm was readily apparent as a result of the claw-like appearance of, and three partially missing fingers on, his still exposed right hand. (R. 27-1, pp. 13-15, 3; R. 5 27-1 pp. 16-17) Photographic evidence submitted in the trial court shows that Sutherlands disfigurement is readily apparent, even upon a cursory inspection. (R. 27-1 pp. 16-17) Critically, there was no evidence introduced to show that Sutherlands preexisting limited range of motion made it so that his arm would sustain fractures or breaks from any less force than would be required to break a perfectly healthy arm. (R. 1-41) The Incident After a short time at the Swap Shop, Sutherland returned to his van and discovered, to his surprise, a parking ticket on the windshield. (R. 23-1, pp. 33, line 14) Sutherland observed some police officers coming down the street at the time and asked if any of the officers had given him the ticket. (R. 23-1, pp. 39-41) While the officers were closing in, Sutherland repeated the question. (R. 23-1, pp. 39-41) By way of answer, in a loud and clearly agitated state, Deputy Allison exclaimed no fking parking there. (R. 23-1, p. 40, line 18) As the officers came even closer, Sutherland again asked [d]id you give me this ticket, to which Allison responded the fking sign is there. (R. 23-1, p. 40, lines 24-25) After Sutherland asked where the sign was, Allison grabbed Sutherland by his left arm near the shoulder and pitched him forward as if trying to physically show Sutherland the sign. (R. 23-1, p. 41, lines 1-12) 6 Sutherland steadied himself, asking Allison what did you do that for? (R. 23-1, p. 41, lines 12-13) In response, Allison rushed up against Sutherland, as if trying to pick a fight, and said because youre a fcking moron. (R. 23-1, p. 40, lines 14-18) Another officer then grabbed Sutherland from behind and put Sutherland in a chokehold while Allison took hold of the injured arm. (R. 23-1, p. 48, line 25, p. 49, lines 1-8) The officers then told Sutherland to get down on his knees, which he did by going limp. (R. 23-1, p. 49, lines 9-10; R. 22-3, p. 49, lines 12-25, p. 50, line 1) Realizing that Allison was about to cuff his arms behind his back, Sutherland pleaded with him, saying [l]isten, dont hold this arm, man, this arm is hurt, please, please, please please, please, dont break my arm, dont hurt me Listen, this arm is sick, please, it cant go behind me, it cannot, please. (R. 23-1, p. 42, line 25, p. 43, lines 1-2) Despite having taken Sutherlands patently deformed arm in his hands, as well as observe it from up close, Allison remained indifferent to Sutherlands pleas for mercy. Instead of proceeding with care on account of the state of Sutherlands arm, Allison took things to the other extreme. (R. 23-1, pp. 42-45) Specifically, Allison had two other officers hold Sutherland down, one of whom put their knee in Sutherlands back. (R. 23-1, p. 44, lines 10-23) Sutherland continued to plead with the officers, but Allison kept getting angrier and angrier until he unleashed a profanity laced tirade, which culminated in calling Sutherland a fking Haitian 7 and telling Sutherland that he was going to teach [him] a lesson. (R. 23-1, p. 45, lines 1-8) Allison proceeded to do just that by repositioning himself and furiously yanking on Sutherlands arm repeatedly. (R. 23-1, p, 45, lines 7-13) Sutherland believes that this went on for several minutes. (R. 23-1, p. 50, lines 7-8) Even by Allisons own account, it took a full minute between the time Sutherland went to the ground to when he was successfully handcuffed. (R. 22-3, p. 51, lines 15-18) Whether it took one minute or several, things came to a head when, in his fury, Allison pulled so hard on the damaged arm that it finally snapped, at which point Sutherland felt a sharp shock as his right arm broke. (R. 23-1, p, 45, lines 7-13) The pain from Allison breaking his arm was so agonizing that Sutherland briefly lost consciousness. (R. 23-1, p. 45, lines 7-13) The Officers Ignore Sutherlands Multiple Requests for Medical Attention The next thing Sutherland remembers is being slammed against his van with his hands cuffed behind him. (R. 23-1, p. 45, lines 10-13, p. 46, lines18-21) At the time, the officers were already searching the van which, it should be remembered, contained a handicap parking permit hanging from the rearview mirror. (R. 23-1, p. 45, lines 24-25, p. 62, lines 6-20) Sutherland made numerous requests for medical assistance, although he never specifically used the term paramedics. (R. 23-1, p. 59, lines 1-10) Sutherland made his first request for medical assistance upon being placed into Allisons patrol car a short time later. (R. 23-1, p. 55, lines 8 21-25, p. 56, lines 1-8) While being detained in Allisons car, Sutherland also asked Deputy Perez to ease the cuffs a bit or put his arm in front of him. (R. 23-1, p. 58, lines 19-24, p. 64, lines 7-8) Perez didnt respond. (R. 23-1, p. 58, lines 21- 24, p. 64, lines 7-8) Sutherland made another attempt at asking Perez for medical assistance a short time later, saying, Listen man Im having a lot of pain, and I need help. (R. 23-1, p. 58, line 25, p. 59, lines 1-3, p. 64, lines 7-8) Deputy Perez remained unresponsive. (R. 23-1,p. 59, lines 1-3, p. 64, lines 7-8) Later, Perez approached Sutherland and asked where he got his handicap parking permit. (R. 23-1, p. 62, lines 6-9, p. 64, lines 7-8) Sutherland told Deputy Perez that he got it from the motor vehicle department and it was because his arm was disabled. (R. 23-1, p. 62, lines 14, p. 64, lines 7-8) Sutherland then asked Perez, yet again, to ease the pressure on his right arm from the handcuffs. (R. 23- 1, p. 62, lines 20-22) With the discussion of the handicap permit fresh in his mind, Perez continued his pattern of apathy. (R. 23-1, p. 62, lines 23-24) Deputy Allison came to the car when it appeared that he was ready to go and Sutherland asked him if he could ease the pressure from the cuff. (R. 23-1, p. 62, line 25- p. 63, line 10) Deputy Allison told him hold on and walked away. (R. 23-1, p. 62, line 25, p. 63, lines 1-10) Sutherland later asked for medical assistance one more time, saying [l]isten, man, give me a break, manI need medical attention, man. (R. 23-1, p. 63, lines 22-23) Deputy Allison responded No, 9 you're going to jail and did not obtain medical assistance. (R. 23-1, p. 63, lines 24-25) Shortly after 10:00 am, approximately five minutes before driving Sutherland to jail, Allison took Sutherland out of the police car and finally moved Sutherlands right arm from the back to the front before reapplying the handcuffs. (R. 27-1, p. 14, 4) Allison left with Sutherland for the jail at 10:13 a.m. (R. 23-3, pp. 28-29) By this time, Sutherlands arm was visibly swollen. (R. 27-1, p. 14, 4) Sutherland had remained in handcuffs with his disabled and broken right arm pinned behind his back for roughly forty-six minutes, from 9:22 until 10:08 a.m. (R. 23-3, pp. 27-28) Sutherland was ultimately charged with resisting arrest without violence as a result of initially arguing about the parking ticket with the officers rather than move from the street. (R. 23-1, p. 69, lines 1-4, R. 27-2, p. 3, 2) After being released from jail, Sutherlands wife took him straight to the emergency room at Palms West Hospital (R. 23-1, p. 76, lines 1-25, p. 77, lines 1- 17), where he was admitted with a severely fractured arm. (R. 23-1, pp. 76-77). He was taken to surgery at the next available time, which was the following morning. (R. 23-1, p. 77, lines 6-17) Sutherland remained in the hospital until the following week. (R. 23-1, p. 78, lines 7-12) In addition to suffering a broken arm, Sutherland also sustained further nerve damage from the incident: he no longer has 10 any movement in his pinky finger and his passive range of motion in his right arm has been reduced by half as compared to his passive range of motion prior to the incident. (R. 27-1, pp. 14-15, 6) The Botched Internal Investigation Undermines the Officers Version of Events In response to a complaint by Sutherland to the Palm Beach County Sheriffs Office about the excessive force used in his detention, Sgt. Kevin Linardos conducted an internal investigation. (R. 23-9, pp. 3-5; R. 27-1, pp. 13- 15) Deputies Allison and Perez claimed that Allison quickly handcuffed Mr. Sutherland without incident, which Linardos understood to mean that it occurred without putting Sutherland on the ground and without resistance. 2 (R. 23-9, p. 35; R. 27-2, p. 2) Linardos purportedly interviewed independent witnesses, including Janelle Schrein, who lived in a nearby area. (R. 23-9, p. 24, lines 14-16; R. 27-2, p. 2) According to Linardoss report, Ms. Schrein backed up the officers story that Sutherland was not taken to the ground during the incident. (R. 23-9, pp. 25- 26; R. 27-2, p. 2) When deposed in this case, however, Ms. Schrein testified that she was not even present when Mr. Sutherland was arrested. (R. 23-12, p.7, lines 23-5, p. 8, line 1) In fact, she testified that she was never even interviewed by Sgt.
2 Although any claims by Allison and Perez which contradict the testimony of Sutherland are resolved in Sutherlands favor for summary judgment purposes, the inconsistencies in Appellees evidence, discussed infra, help further underscore the inappropriateness of summary judgment in this case. 11 Linardos or any other police officer about the incident. (R. 23-12, p. 11, lines 19- 25, p. 12, lines 1-3) Sgt. Linardos also interviewed Officer Robert Hite, a Palm Springs police officer who purportedly claimed that Sutherland was handcuffed without incident, which Linardos once again claimed to mean without any problems whatsoever, such as receiving resistance from Sutherland or taking him to the ground. (R. 23-9, p. 28, lines 9-22; p. 29, lines 8-25; p. 30, lines 1-7; R. 27-2, p. 2) Linardos documented the following statement by Officer Hite in his report: I made contact with Palm Springs Police Officer Robert Hite (ID#155) also known as Big Rob. Officer Hite was working the Swap Shop detail when he heard and observed two deputies trying to verbally direct Mr. Sutherland out of the road. Officer Hite went over to the deputies location, and observed one deputy quickly handcuffing Mr. Sutherland. . . . Officer Hite also stated he heard D/S Deputy Perez-Pizzaro offer Mr. Sutherland medical treatment but Mr. Sutherland refused As Mr. Sutherland was now cooperative, Officer Hite left the scene. (R. 27-2, p. 2) Like Mrs. Schrein, Officer Hite also offered testimony in this case that undermines both Appellees version of events, as well as Linardoss report. (R. 23-7) Hite testified that he contacted his dispatch at 9:19 a.m. and 50 seconds and told them that PBS units were taking a male down to the ground. (R. 23-7, p.7, lines 24-25, p. 8, lines 1-8) Hite further recalled that after observing two deputies trying to apprehend a male, he ran over and asked if they needed assistance. (R. 12 23-7, p. 11, lines 1-17) In direct contrast to Linardoss report, Hite testified that he observed Sutherland on the ground while two officers pulled on his arms in effectuating the handcuffing. (R. 23-7, pp. 12-13) Further, Hite testified that he never heard either of the deputies ask Sutherland whether he needed medical assistance, saying that if it happened, he wasnt there for that part. (R. 23-7, pp. 14-15) In conducting the internal investigation, Linardos also interviewed Allison and Perez, who told Linardos that Sutherland was arrested without resistance and without any problems with handcuffing. (R. 27-2, pp. 2-2) In this case, however, they now insist that Sutherland was thrashing about on the ground, pushing his arms away from Allisons control, and was told to stop resisting. (R. 19, pp. 5-6; R. 22-3, pp. 49-55) Based on these inconsistencies, Linardos concluded not only that there was no evidence of unreasonable force, but, incredibly, that there was no evidence that Sutherland had even suffered an injury. (R. 23-9, p. 37, lines 8-12; R. 27-2, pp. 1, 3) The Trial Courts Order Despite the inconsistencies between Sutherlands testimony and the officers, as well as the differences between the testimony taken in this case and the statements contained in Sergeant Linardoss report, the trial court granted 13 summary judgment by inexplicably accepting Allisons and Perezs version of events as true. 3 (R. 35) This appeal follows. C. STANDARD OF REVIEW A de novo standard of review is appropriate to apply to the entry of summary judgment by a district court. Scala v. City of Winter Park, 116 F.3d 1396, 1398 (11th Cir. 1997). Summary judgment is appropriate only where the record shows no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Id. Further, all evidence and reasonable factual inferences drawn therefrom are reviewed in the light most favorable to the party opposing the summary judgment motion. Id.
3 For readability purposes, rather than extend the fact section, the argument section of this brief contains the specific references to the parts of the order which show that the trial court failed to consider the facts in a light most favorable to the non- moving party. 14 Summary of the Argument The district court erred in finding no material issues of fact as to whether Defendants used excessive force. The record evidence sufficiently shows that the officers conduct violated clearly established constitutional rights of which a reasonable officer would have known. Whether the amount of force used by an officer is deemed reasonable depends on the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. Here, the severity of the crime, the threat posed to the officers or others at the time of the arrest, and the level of resistance was minimal. Additionally, Allison and Perez were not only informed by Sutherland at the very outset of the encounter that his arm was sick and could not be moved behind his back, but these claims were easily verified by sight and feel. Instead of considering these factors in confirming Sutherlands pleas, Allison continued to forcefully yank and pull his arm until it broke. As further indicia of Allisons malicious intent, he uttered a racial epithet and said he was going to teach Appellant a lesson immediately prior to breaking his arm. To make matters worse, Allison and Perez then kept Sutherlands broken arm cuffed behind his back for an additional forty-six minutes. 15 The trial court also mistakenly treated Sutherland as an egg-shell plaintiff. The cases relied upon by the trial court in granting summary judgment all involved handcuffing procedures with a routine level of force that resulted in serious injuries strictly because of the plaintiffs preexisting conditions. This is simply not what occurred here; there is no record evidence that the preexisting condition that limited Sutherlands range of motion made it so that his arm would sustain breaks from any less force than would be required to break a perfectly healthy arm. The trial court also erred by granting summary judgment on Sutherlands deliberate indifference claim. Sutherland introduced evidence that neither Allison nor Perez offered him medical attention at any point during their encounter. Instead, Sutherland had to repeatedly ask for medical help and such requests were either ignored or blatantly refused. Sutherlands repeated pleas, his loss of consciousness, swollen arm, and handicap parking permit were but a few of several objective indicators demonstrating his serious medical condition and need for immediate medical attention. Both Allison and Perez knew that the handcuffs, which stretched Sutherlands broken arm behind his back, were in a position which caused him agonizing pain and discomfort, yet they did nothing for almost an hour. Allison and Perez did not contact paramedics, take Sutherland to the hospital, or even check Sutherlands arm after his initial requests for medical help. Instead, they dumped Sutherland at the jail without a single word about his condition. 16 Argument I. THE DISTRICT COURT ERRED IN FINDING THAT THERE WAS INSUFFICIENT EVIDENCE TO CREATE A MATERIAL ISSUE OF FACT AS TO WHETHER ALLISON AND PEREZ USED EXCESSIVE FORCE WHEN HANDCUFFING SUTHERLAND A government official may be held liable under 1983 when their conduct violates clearly established statutory or constitutional rights of which a reasonable person would have known. See Mercado v. City of Orlando, 407 F.3d 1152, 1156 (11th Cir. 2005). It is well established that a person has a constitutional right to be free from all reasonable searches and seizures, including the right to be free from excessive force. Id. at 1156; Davis v. Williams, 451 F.3d 759, 767 (11th Cir. 2006) (noting that it is clearly established that the use of excessive force in carrying out an arrest constitutes a violation of the Fourth Amendment). The Eleventh Circuit has held that that an officers use of de minimis force is both necessary and reasonable to apprehend a person and place them under arrest. See e.g., Rodriguez v. Farrell, 280 F.3d 1341, 1352 (11th Cir. 2002) (holding that painful handcuffing without more, is not excessive force where the resulting injuries are minimal.). However, a plaintiff can establish 1983 liability for an officers use of excessive force by demonstrating that the officers, in making an arrest, used force against the individual which went above and beyond de minimis force which a reasonable officer would have used in the same situation. See Nolin 17 v. Isbell, 207 F.3d 1253, 125556 (11th Cir. 2000). Whether the amount of the force is deemed reasonable depends on the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. Davis, 451 F.3d at 767. The doctrine of qualified immunity shields government officials that are engaged in a discretionary function from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Davis, 451 F.3d at 762 (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). This Court has held that in order to withstand an officers claims of qualified immunity for their use of excessive force, a plaintiff must show that the unconstitutionality of the officers conduct was clearly established at the time of the violation. Lloyd v. Tassell, 318 Fed. Appx. 755, 758 (11th Cir. 2009). A plaintiff can do this in one of two ways: 1) by identifying a materially similar case in which the officers action was found to be unlawful; or 2) by showing that the general standards are so clear that they would lead all reasonable officers in the defendants position to conclude that the force was unlawful. Id. In other words, even in the absence of a factually similar case declaring the officials conduct unconstitutional, a plaintiff can still 18 overcome qualified immunity by showing that the officials conduct lies so obviously at the very core of what the Fourth Amendment prohibits that the unlawfulness of the conduct was readily apparent to the official, notwithstanding the lack of case law. Smith v. Mattox, 127 F.3d 1416, 1418 (11th Cir. 1997). See also Davis, 451 F.3d at 762 (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002) for the proposition that officials can still be on notice that their conduct violates established law even in novel factual circumstances . . . . [A]lthough earlier cases involving fundamentally similar facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding). Here, not only was Allisons and Perezs conduct excessive under materially similar caselaw, but the unlawfulness of their misconduct was readily apparent in any event. A. Sutherland Sufficiently Established that Allison and Perez Violated his Constitutional Right to be Free from Excessive Force by Breaking his Arm Sutherland has sufficiently demonstrated that Allisons and Perezs 4 conduct violated clearly established constitutional rights of which a reasonable officer
4 Although the bulk of the excessive force in handcuffing Sutherland was committed by Allison, any liability extends to Perez. Perez stood idly by watching Allison repeatedly yank Sutherlands arm before finally pulling with such force as to cause a break. It is clearly established in this Circuit, however, that Perez is liable for all of these acts because of his integral participation, as well as his failure to stop Allison by standing idly by. See Skritch v. Thornton, 280 F.3d 1295, 1302 19 would have known. Smith, 127 F.3d at 1420. Not only were Allisons and Perezs actions so clearly beyond the hazy border between excessive and acceptable force that they knew or should have known they were violating the Constitution, but there are also multiple materially similar cases from this Circuit in which this Court found that the officers actions were unlawful. See Smith, 127 F.3d at 1419; Davis, 451 F.3d at 763. This Courts decision in Davis v. Williams is strikingly similar to the case at hand. 451 F.3d 759 (11th Cir. 2006). In Davis, the plaintiff, who was hosting a family gathering, became concerned for the safety of several guests who had not yet arrived after noticing flashing police lights outside his home. Id. at 763. The plaintiff proceeded down his driveway and approached two deputies performing a traffic stop. The plaintiff informed the officers that he was the homeowner and asked why they were on his property. The officers told him to get away to which the plaintiff responded I live here. The officers then repeated their order for the plaintiff to leave. The plaintiff complied and began walking towards his home. The plaintiff then noticed, however, that the police car was blocking a section of his land, thereby forcing cars to drive onto another portion of his property which
(11th Cir. 2002) (recognizing that an officer who is present at the scene and who fails to take reasonable steps to protect the victim of another officers use of excessive force, can be held liable for his nonfeasance.). Moreover, Perez actively participated in extending the ordeal by forty-six minutes. 20 ended in an unlit lake. Worried that someone would drive into the unlit lake, the plaintiff asked the officers if he could direct traffic away from that area. The officers again told him to go away or that they would arrest him. Although the plaintiff began walking towards his home, one of his guests asked the Deputy for his badge number. Both officers then grabbed the plaintiff from behind, twisted his arms behind his back, and handcuffed him. Id. The plaintiff immediately told the officers that he had an injured shoulder and was in pain. Id. at 764. The deputies response was to push on his hurt arm with even more force, causing greater pain. The deputies then forced the plaintiff to the ground by pushing on his bad shoulder, dragged the plaintiff to their police car, and once again pushed on his bad shoulder while forcing him to the ground. The plaintiff was eventually diagnosed with a torn rotator cuff in his right shoulder, which required surgical repair. Id. Ultimately, the plaintiff was charged with obstruction of justice and disorderly conduct. Id. at 761. This Court found that even if the officers had probable cause to apprehend the plaintiff for obstruction of justice and disorderly conduct, under these circumstances a reasonable jury could find that they used excessive force in carrying out the arrest. Id. at 767. In so doing, the Court looked at the totality of circumstances, noting that the plaintiff was not suspected of having committed a serious crime, he did not pose an immediate threat to anyone, and he did not 21 actively resist arrest. Id. The Court additionally focused on the fact that even after being told by the plaintiff of his pre-existing injury, the officers nevertheless pushed him to the ground, dragged him, and intentionally inflicted more pain onto his injured shoulder after he had been detained. Id. Like the plaintiff in Davis, the severity of the crime (resisting arrest without violence for arguing over a parking ticket), the threat posed to the officers or others at the time of the arrest, and the level of resistance (Sutherland voluntarily went limp) was, to say the least, minimal. The additional factors showing the officers knowledge of the preexisting condition, however, make this case even more egregious than the conduct in Davis. Here, Allison and Perez were informed by Sutherland at the very outset of the encounter that his arm was sick and could not be moved behind his back. Because of the claw like appearance of Sutherlands arm (including partially missing fingers), as well as the presence of the handicap permit on Sutherlands van, 5 however, Allison and Perez had even more indicia of the preexisting condition than the officers in Davis. Instead of considering these factors in conjunction with Sutherlands numerous pleas, Allison continued to forcefully yank and pull his arm until it broke. Moreover, here, unlike in Davis,
5 The handicap permit was in plain view of the officers from the time they initially placed a ticket on Sutherlands windshield through the entire arrest, including the initial discussions between Sutherland and the officers, which occurred right in front of Sutherlands van. 22 the officer uttered a racial epithet and said he was going to teach Appellant a lesson immediately prior to breaking his arm. See Brown v. City of Hialeah, 30 F. 3d 1433, 1436 (11th Cir. 1994) (finding that racial epithets and profanities that are yelled by an officer during an arrest can be considered in assessing the objective reasonableness of the officers force. ) See also Bozeman v. Orum, 422 F.3d 1265, 1272 n. 11 (11th Cir. 2005) (same); Evans v. Stephens, 407 F.3d 1272, 1281-82 (11th Cir. 2005) (recognizing that threatening and racist language has an impact on people and counts towards the unreasonableness of the manner in which the officer performs his duties). In granting summary judgment, the trial court distinguished Davis by improperly making several factual findings in favor of Appellees/Defendants. First, the court found that Sutherland was only subjected to a single action of forcible handcuffing in which his arm was broken mere seconds after informing the officers that his arm was sick. (R. 35, pp. 13-14) This ignores Sutherlands testimony that Allison yanked on his arm for several minutes before finally breaking it and securing the cuffs. For that matter, even Allison testified that a full minute passed between the time Sutherland was secured on the ground and the time he was placed in handcuffs. The distinction between the exertion of force for a few seconds versus one or more minutes is crucial not only in relation to the amount of force used and the intensity of the pain suffered by Sutherland, but also 23 to the issue of whether the officers acted reasonably under the circumstances. The unreasonableness of Allisons and Perezs conduct exponentially increased with every passing second/minute. The court not only impermissibly took this issue from the fact finder, but did so in a way as to be even more favorable to the defense than what the officers themselves were claiming. Even if Allison had claimed that the cuffing took a few seconds, however, for purposes of summary judgment, the court was bound to accept Sutherlands recollection that the struggle lasted for several minutes. The court also ignored Sutherlands testimony by finding, based upon the testimony of the officers and the somewhat limited testimony of a civilian witness, that Sutherland posed an immediate, albeit minor, threat at the time of the arrest. (R. 35, pp. 12-13) Once again, for purposes of summary judgment, it is the testimony supporting Sutherlands version of events that must be accepted. This is particularly true in light of the glaring inconsistencies between the internal investigation and the testimony in this case, including Allison and Perez changing their version of events. These inconsistencies alone create a reasonable inference that Allison and Perez initially lied about the events in order to cover up their misconduct. A fact finder is entitled to consider such indicia of dishonesty about a material fact as evidence of guilt. See Tatum v. Jackson, 2009 WL 3633975 24 (S.D.N.Y.) (citing Reeves v. Sanderson Plumbing Prods., Inc. 530 U.S. 133, 147 (2000) (finding that a jury could reasonably have inferred that [the defendant] was deliberately lying about the events of the morning in order to cover up her misconduct. Such an inference would have been consistent with the general principle of evidence law that the factfinder is entitled to consider a partys dishonesty about a material fact as affirmative evidence of guilt.). It is so well established as to be beyond dispute that, if [a] jury were satisfied, from the evidence, that false statements in the case were made by defendant, or on his behalf, at his instigation, they had the right, not only to take such statements into consideration, in connection with all the other circumstances of the case, in determining whether or not defendant's conduct had been satisfactorily explained by him upon the theory of his innocence, but also to regard false statements in explanation or defense, made or procured to be made, as in themselves tending to show guilt. U.S. v. Urban, 404 F.3f 754, 782 (3rd Cit. 2005) (quoting Wilson v. United States, 162 U.S. 613, 620-21, 16 S.Ct. 895, 898-99 (1896)). Finally, in determining that Sutherlands arm was hidden from view, the trial court focused solely on Sutherlands long-sleeve shirt and ignored the evidence showing that, under the totality of circumstances, Alison and Perez knew or reasonably should have known of his preexisting condition. (R. 35-1, p. 13) This 25 is but another example of the court disregarding its obligation to examine all facts in a light most favorable to the non-moving party. That the trial court improperly weighed the evidence is best illustrated by its reliance on Rodriguez v. Farrell, 280 F.3d 1341 (11th Cir. 2002), which supports Allisons and Perezs story, in lieu of Davis, which is directly on point under Sutherlands version of events. In Rodriguez, the plaintiff/arrestee had recently undergone surgery to his arm after being in a motorcycle accident. Id. at 1343 n.2. In making the arrest, the officer grabbed the plaintiffs arm, twisted it around his back, and jerked it high up to his shoulder. Id. at 1351. This resulted in the loosening of internal surgical hardware and the displacement of a key bone fragment. Id. Because the procedure employed to handcuff the plaintiff would have been innocuous if not for his condition, the Court was unwilling to find that the force used was excessive just because of the severity of the injury. Id. (describing that [t]he handcuffing technique used by [the officer] is a relatively common and ordinary accepted non-excessive way to detain an arrestee). Under these facts, the Court held that the force used in standard handcuffing procedures is reasonable and does not become excessive when that force merely aggravates a pre-existing condition that was unknown to the officers at the time. Id. Rodriguez is easily distinguishable from both the instant case and Davis for a number of reasons. First, the plaintiff in Rodriguez admitted that he did not tell 26 the officers of his injured arm prior to the arrest, nor were there any outward indications of the condition. Id. at 1353, n.20. In fact, although the plaintiff was still wearing a sling on his arm at the time he was pulled over, he removed it prior to exiting his vehicle. Id. at 1343. In the instant case, even though he wore a long- sleeve shirt, Sutherland not only informed Allison of his condition numerous times from the outset, but his statements were readily verifiable by the claw like appearance of his hand, his partially missing fingers, and the presence of the handicap permit on his vehicle. More importantly, the damages suffered by the plaintiff in Rodriguez were directly attributable to the preexisting condition, whereas both here and in Davis, although the preexisting condition caused additional pain, and possibly led to more severe long-term consequences, there is no evidence that the condition itself made a break any more likely, as discussed in greater detail, infra. Finally, the evidence shows that the force used against Sutherland was much greater than typical. In Rodriguez, the officer, without making any comments or threats, quickly jerked the plaintiffs arm high up to his shoulder. Here, the evidence showed that Allison did significantly more than merely attempt to briefly jerk Sutherlands arm. Rather, after Sutherland was already secured on the ground, Allison insulted Sutherlands heritage, told him that he would teach him a lesson, and repeatedly yanked and 27 pulled on Sutherlands arm. Perez and Allison then left Sutherland to suffer with a broken arm cuffed behind his back for nearly an hour. Allison might claim that he was trying to jerk Sutherlands arm upward, but mistook the physical impossibility of being able to move Sutherlands arm for intentional resistance. Such an explanation defies common sense unless one were to believe that Mr. Sutherland had super-strength in his right arm that was mysteriously lacking from the left. At the very least, however, there are issues of fact as to such a claim based upon the following evidence: Allisons unprovoked aggression and racial hostility; the feel and appearance of Sutherlands arm, which Allison observed visually and should have detected by touch; Sutherland going limp to the ground immediately prior to any perceived resistance; Sutherland informing Allison over and over about the condition of his arm; and the amount of time Allison continued to pull on Sutherlands damaged arm after he was already secured on the ground. The Davis court distinguished Rodriguez for similar reasons: as opposed to the one brief incident in Rodriguez, Davis involved several incidents of intentionally grabbing, pushing, and pulling of the arrestees arm after he was detained (same as the repeated yanking for several minutes in the instant case); unlike in Rodriguez, in Davis the arrestee informed the officer almost immediately upon the arresting procedures that he had a bad shoulder (same as the instant case); 28 and the officer in Davis intentionally applied force on the arrestees injured shoulder so as to inflict further pain (similar to Allison using a racial epithet and threatening to teach Sutherland a lesson before beginning to repeatedly yank on the bad arm). See Davis, 451 F.3d at 767-68. 6 Accordingly, the Davis court reversed the summary judgment and held that there was a triable issue of fact on the issue of excessive force. In addition to Rodriguez, the trial court also misapplied the holding in Secondo v. Campbell, 327 Fed. Appx. 126 (11th Cir. 2009), which is distinguishable for many of the same reasons. Unlike here, the Secondo officers had nothing but the word of the arrestee about the existence of the preexisting condition and could not otherwise verify his claims. Id. at 128. More importantly, the police officers in Secondo only engaged in a single action of standard behind the back handcuffing, which was executed in a matter of seconds. Id. The cuffs were removed within a few minutes as opposed to three quarters of an hour. Id. Thus, even if the handcuffing took the same amount of time as was used in
6 The plaintiff in Davis was also thrown in a dog cage for a short period of time before being transferred to a police car. Davis, 451 F.3d at 767. The Court, however, did not consider this factor in distinguishing Rodriguez, but merely focused on the differences relative to notice of the preexisting condition, the repetitiveness of the excessive force, and the length of the ordeal. Id. To the extent that the plaintiffs placement in a dog cage is read to be an integral part of the decision, for purposes of an excessive force analysis, it is similar to Allison and Perez extending Sutherlands ordeal by keeping his hands cuffed behind his back for a sustained period of time after breaking his arm. 29 Rodriguez and Secondo, this case is still materially different because of the extraordinary length of time that Sutherland spent in agony from his arms remaining cuffed behind his back after Allison broke his arm. Finally, both Rodriguez and Secondo involved plaintiffs with preexisting injuries that led to more severe injuries than would normally occur from the use of a common, non- excessive handcuffing technique. Secondo, 327 Fed. Appx. at 128; Rodriguez, 208 F. 3d at 1352. The trial courts reliance on Rodriguez and Secondo sheds light on the courts misunderstanding of the difference between the preexisting condition of those plaintiffs and that of Sutherland. To be clear, Allison and Perez should have taken the state of Sutherlands arm into account when detaining him. The presence and obviousness of the deformity, however, is relevant to further demonstrate the excessiveness of leaving Sutherlands arms behind his back for three quarters of an hour, as well as to demonstrate the additional pain Sutherland experienced during the cuffing, even before the break. 7 The preexisting injury does not, however, make Sutherland an egg-shell plaintiff as far as the break itself; there is no record evidence that the preexisting condition that limited Sutherlands range of motion made it so that his arm would sustain fractures or breaks from any less force than
7 The preexisting deformity is likewise relevant in further demonstrating deliberate indifference, discussed infra. 30 would be required to break a perfectly healthy arm. This factor alone makes the holdings in Rodriguez and Secondo inapplicable to the case at hand. Here, the technique that Allison used in handcuffing Sutherland would not be considered reasonable or de minimis even if Sutherland was not burdened by a preexisting injury. As a matter of law, an officers constant pulling, twisting, and yanking of a persons arm with such force as to actually break the bone is not a reasonable amount of force when the person being arrested is docile and thereby not a threat. 8 Smith v. Mattox, 127 F.3d 1416, 1420 (11th Cir. 1997). Although the use of force that would have been deemed reasonable had this been an ordinary handcuffing procedure might have caused Sutherland more pain and suffering than a person with no disability, there is no evidence tending to show that Sutherlands bone was more fragile or more susceptible to being broken or that it took any lesser amount of force to break his bone than it would have to break a perfectly healthy arm. Sutherlands arm broke as a result of the amount of force Allison applied in order to teach him a lesson regardless of the fact that he had a disability. Like Davis, Smith is another case with remarkably similar facts. In Smith, this Court held that the force great enough to cause a broken arm is excessive even
8 After Sutherland went limply to the ground, two other officers held him in place by his back, shoulders, and neck, thereby ensuring that there would be no physical harm to the officers. At that point he was fully secured on the ground and in the deputies physical custody. 31 when inflicted while restraining a previously fractious arrestee. Id. at 1420. In that case, the arrestee raised a bat in a threatening posture towards law enforcement after being approached by a uniformed officer. Id. at 1418. Once officers drew their weapons, the arrestee dropped the bat and ran from the officers to evade arrest. Id. When the officers caught up with the arrestee and ordered him to get on the ground he docilely complied with their request. Id. The officer then put his knee in the arrestees lower back and began pulling his left arm behind his back to fasten the handcuffs in a way that caused discomfort. Id. Although the arrestee complained of the discomfort, the officer continued with the handcuffing. Id. Then, with a grunt and a blow the officer broke the arrestees arm. Id. The Court held that despite the arrestees previous resistance, threats to the officer, and attempts to flee, the force that the officer used was unnecessary and excessive when it came time to restrain him. Id. at 1420. In so holding, the Court acknowledged that even in the absence of caselaw on point, the plaintiff was able to show that by breaking his arm, the defendant officers conduct was so far beyond the hazy border between excessive and acceptable force that [he] had to know he was violating the Constitution. Id. at 1419. The facts in this case are even farther beyond that hazy border between excessive and acceptable force. Here, as in Smith, Sutherland went to the ground without resistance (by Allisons own words, Sutherland went limp). Unlike Smith, 32 Sutherland never violently threatened the officers, attempted to flee, or actively resisted arrest. Moreover, Allisons efforts were more severe than simply one hard pull. Rather, Allison pulled, twisted, and yanked Sutherlands arm with as much force as was required to break his bone. The severity of the break, which ultimately led to emergency surgery, a week long stay in the hospital, and permanent nerve damage, demonstrates just how much force Allison actually exerted on Sutherlands arm. Sutherland introduced evidence that as a result of Allison breaking his arm, he sustained nerve damage. The result is that, nearly three years after the incident, Sutherland no longer has any movement in his pinky finger and his passive range of motion in his right arm has been reduced by half as compared to the passive range of motion prior to the incident. In the absence of evidence showing that Sutherlands condition made him more susceptible to breaks from lesser force, there are only two possible explanations for his permanent injuries: 1) the force from Allisons repeated yanking and pulling, which was so severe that it resulted in the break or; 2) the after-effects of the officers leaving Sutherland with his broken, and previously damaged, arm behind his back for nearly forty-six minutes. Under either scenario, or combination thereto, the Defendant officers violated Sutherlands clearly established right to be free from excessive force. 33 B. Sutherland Sufficiently Established that Allison and Perez Also Violated his Constitutional Right to be Free from Excessive Force by Slamming him Against a Van and then Leaving his Hands Cuffed Behind his Back for Forty-Six Minutes After Breaking his Arm Despite his Repeated Pleas for Help The infliction of force after an officer has been informed of an existing injury or condition and after an arrestee has been subdued or arrested constitutes excessive force. Lee v. Ferraro, 284 F.3d 1188, 1199 (11th Cir. 2002) (finding that there is no reason, let alone any legitimate law enforcement need, for an officer to slam an arrestee into a car after they were secured and placed in handcuffs). Once an arrestee has been fully secured, the use of force is wholly unnecessary to any legitimate law enforcement purpose. Id. at 1199. The use of force against a handcuffed and restrained arrestee is objectively unreasonable and clearly unlawful. Id. at 1200. Here, in addition to the excessive force that was used on Sutherland when he was lying face down on the pavement while officers were making the arrest, he was stood up after he was cuffed and slammed against his van. 9 This Court describes the act of slamming a handcuffed and subdued arrestee as being entirely unnecessary and excessive. Id. Furthermore, while Sutherland remained
9 Although Sutherland did not sustain great injury as a result of being slammed into the car, the Eleventh Circuit has held that the lack of injury does not alone render the force used by officers de minimis. Lee v. Ferraro, 284 F.3d 1188, 1200 (11th Cir. 2002). 34 cuffed, he again explained to the deputies the disability of his arm and told them of the excruciating pain he was experiencing on at least three separate occasions, yet he was left in the cuffs in the back of a police car for over 45 minutes. At one point, Perez went so far as to ask Sutherland about the handicapped parking permit on his car. Even after Sutherland told him that he received the permit because of his injured arm, Perez continued to ignore his pleas for relief. All of these actions, taken after Sutherland was arrested and in custody, further demonstrate that the officers conduct was excessive, objectively unreasonable, and done for the sole purpose to cause Sutherland pain and to teach him a lesson. Based on the foregoing, the trial court committed reversible error when it granted Defendants/Appellees Motion for Summary Judgment on Sutherlands claims of excessive force. II. THE DISTRICT COURT ERRED IN GRANTING ALLISON AND PEREZ SUMMARY JUDGMENT ON SUTHERLANDS DELIBERATE INDIFFERENCE CLAIM The trial court also erred by granting summary judgment in favor of Allison and Perez on Sutherlands claims for deliberate indifference. In reaching its decision, the court once again failed to examine the facts in a light most favorable 35 to Sutherland which showed that Allison and Perez were deliberately indifferent to his serious medical needs. The claim of deliberate indifference has its nexus in the constitutional right to be free from the unnecessary and wanton infliction of pain. Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990) (citing Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291 (1976)). To prevail on a claim for deliberate indifference, a plaintiff must prove both an objectively serious medical need and that a Defendant acted with deliberate indifference to that need. Burnette v. Taylor, 533 F.3d 1325, 1330 (11th Cir. 2008). A serious medical need [is] one that is diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would recognize the need for medical treatment. Id. (citing Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003)). Here, the trial court acknowledged that Sutherland introduced sufficient evidence that the extent of his injury constitutes an objectively serious need. (R. 35) Thus, the only issue for the court was whether the facts, when taken in a light most favorable to Sutherland, showed that Allison and Perez acted with deliberate indifference to that objectively serious medical need. To establish deliberate indifference, a plaintiff must show that a Defendant had subjective knowledge of the risk of serious harm and disregarded that risk by conduct that is greater than gross negligence. Burnette, 533 F.3d at 1330 (citing 36 Bozeman v. Orum, 422 F.3d 1265, 1272 (11th Cir. 2005)). Whether a particular defendant had subjective knowledge of the risk of serious harm and disregarded that risk is a question of fact that can be inferred from circumstantial evidence, including the obviousness of the risk. Goebert v. Lee County, 510 F.3d 1312, 1327 (11th Cir. 2007). Even when the resulting harm is limited to unnecessary pain and suffering, a plaintiff states a prima facie case of deliberate indifference by showing an unexplained delay of hours between sustaining a broken bone and receiving medical treatment. Brown, 894 F.2d at 1538; Harris v. Coweta County, 21 F.3d 388, 393-94 (11th Cir. 1994) (citing Brown). Sutherland presented more than enough evidence from which a fact finder could conclude that both Allison and Perez had knowledge of and acted with deliberate indifference towards Sutherlands serious medical condition and need for assistance. See Brown 894 F.2d at 153839 (11th Cir. 1990) (noting that the plaintiffs limp and then hop on one leg, foot swelling, and request for medical attention created an issue of fact as to whether the defendant knew of the plaintiffs broken foot). In Brown, the plaintiff was a prisoner who suffered a broken foot after being attacked by another inmate. Brown, 894 F.2d at 1536. The plaintiff did not see a doctor for nearly six hours. The plaintiff filed numerous claims, including deliberate indifference against, among others, the officers who the plaintiff complained to immediately thereafter. Id. at 1535 This Court explained: 37 With this type of injury, it may be that deliberately indifferent delay, no matter how brief, would render defendants liable as if they had inflicted the pain themselves. Deliberately inflicted pain, as with an electric cattle prod, does not become unimportant and unactionable under the eighth amendment simply because the pain produced is only momentary. Even if we were to recognize as de minimus delays of a few seconds or minutes, a deliberate delay on the order of hours in providing care for a serious and painful broken foot is sufficient to state a constitutional claim. Id. at 1538. Similar to the plaintiff in Brown, Sutherland had to wait approximately 4 hours before obtaining medical treatment for his broken arm. However, this case is even more egregious because, unlike the defendants in Brown, Allison and Perez were directly responsible for the injury. Moreover, Appellees greater than gross negligence is demonstrated by the fact that they not only failed to obtain medical attention for the broken arm, but left Sutherland with his hands behind his back for nearly an hour, thereby exacerbating the injury and exponentially increasing his pain. Sutherland introduced evidence that neither Allison nor Perez offered him medical attention at any point during their encounter. Instead, Sutherland had to repeatedly ask for medical help and such requests were either ignored or blatantly refused. Sutherlands repeated pleas, his loss of consciousness, swollen arm, and handicap parking permit were but a few of several objective indicators demonstrating his serious medical condition and need for immediate medical attention. Both Allison and Perez knew that the handcuffs, which stretched 38 Sutherlands broken arm behind his back, were in a position which caused him agonizing pain and discomfort, yet they did nothing for almost an hour. It was only right before transporting Sutherland to jail that Allison let him out of the police car and moved his right arm from the back to the front before reapplying the handcuffs. Allison and Perez did not contact paramedics, take Sutherland to the hospital, or even check Sutherlands arm after his initial requests for medical help. Instead, they dumped Sutherland at the jail without a single word about his condition. In granting Appellees Motion for Summary Judgment, the trial court noted that Sutherland failed to meet his burden to show that Defendants Allison and Perez had subjective knowledge of his injurygiven that there is no dispute that they offered him paramedic help and he refused. (R. 35, p. 16). The court further noted that Sutherland testified thathe declined needing paramedics to come to the scene. (R. 35, p. 15). These findings ignore Sutherlands testimony that he was never offered any medical help whatsoever and completely distort Sutherlands testimony that although he did not specifically ask for paramedics, he repeatedly asked for medical help. (R. 23-1, p. 59, lines 1-10) The court also disregarded the evidence that in the immediate aftermath of having his arm broken, Sutherland briefly lost consciousness. This alone should have prompted Allison and Perez to get Sutherland medical attention. Instead, 39 they slammed him into a van. Finally, the trial court found that, as a matter of law, Allisons and Perezs conduct did not constitute deliberate indifference because even under Sutherlands version of events, the indifference only lasted one hour before the officers ultimately moved Sutherlands handcuffs and took him to jail. This ignores the fact that Defendants never took any steps to obtain medical treatment. By the time they were pulling away from the scene of the arrest, however, Allisons and Perezs deliberate indifference was established even if they had taken Sutherland to the hospital instead of jail. See Brown, 894 F.2d at 1539 (finding that even where a defendant ultimately provides for medical care on the same day, the case for deliberate indifference is established by the unexplained delay of hours). Based on the foregoing, the trial court committed reversible error when it granted Defendants/Appellees Motion for Summary Judgment on Sutherlands claims of deliberate indifference. Conclusion Based on the foregoing, this Court should reverse the order granting summary judgment in favor of Appellees and remand the case for trial. 40 Certificate of Compliance I hereby certify that this brief complies with the type-volume limitation set forth in Fed. R. App. P. 32(a)(7)(B) and contains 10,151 words. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) and has been prepared using 14 point Times New Roman. Certificate of Service I hereby certify that a true and correct copy of the Initial Brief of Appellant, Norrel Sutherland, was mailed to Fred H. Gelston, 601 N. Dixie Highway, Suite C, West Palm Beach, Florida 33401 on this 26th day of August, 2010. CONRAD & SCHERER Attorneys for Appellant 633 South Federal Highway Fort Lauderdale, Florida 33301 Telephone: (954) 462-5500 Facsimile: (954) 463-9244
BY: DANIEL S. WEINGER Florida Bar No. 172900 dweinger@conradscherer.com GREGORY R. BARTHELETTE Florida Bar No.: 791296 gbarthelette@conradscherer.com