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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11033
Non-Argument Calendar
________________________
D.C. Docket No. 6:15-cv-01896-ACC-KRS
THOMAS ROBINSON,
Plaintiff-Appellee,
versus
COLE LAMBERT,
in his individual capacity,
Defendant-Appellant,
A. PETERKIN,
in his individual capacity, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 22, 2018)
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Before TJOFLAT, JILL PRYOR, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Officer Cole Lambert appeals from the denial of his motion for
summary judgment in a 42 U.S.C. § 1983 action against him for using excessive
force. His appeal asks whether an officer is entitled to qualified immunity and
statutory immunity when, after a pretrial detainee is subdued, the officer threatens
the detainee with further injury and shoves him with enough force to break his arm.
We hold that Officer Lambert is not entitled to qualified or statutory immunity, and
affirm the District Court’s order.
I.
Because we resolve all issues of material fact in favor of the plaintiff on
review of a motion for summary judgment, Singletary v. Vargas,
804 F.3d 1174,
1180 (11th Cir. 2015), we adopt Plaintiff Thomas Robinson’s version of the facts.
His version is as follows:
Robinson surrendered to the Volusia County Sheriff’s Office on August 17,
2012 after learning of an outstanding warrant against him. He was arrested and
placed in an intake cell. The next morning, Robinson was called to court for first
appearance. He refused to go. After several failed attempts to persuade Robinson
to go, someone on the corrections staff said: “Well, we’re going to send you some
motivation.”
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At that time, Officer Cole Lambert entered his cell along with Officers
Peterkin and Washburn. Robinson was sitting on his bunk with his hands at his
side. Lambert grabbed Robinson’s left arm and told him to get up. Robinson
replied that he would not. Lambert then pulled him off the bunk, slammed him
against the wall, and put his left arm behind his back in a hammerlock hold. 1
Peterkin followed suit with his right arm. Lambert and Peterkin began shoving
Robinson back and forth. Robinson was against the wall for approximately 30 to
45 seconds. The officers had complete control of his arms, and Robinson was not
resisting.
While he was pinned against the wall, Robinson told the officers that he had
a spinal cord injury. 2 Peterkin asked, “What’s that supposed to mean?” But
Lambert responded, “Well, you’re going to have another one.” He then shoved
Robinson hard face-down onto a desk with Lambert holding his left arm and
Peterkin his right. Robinson had been on the desk for 20 to 30 seconds when
Lambert gave him one last shove, and his right arm, which was being held by
Peterkin in a hammerlock, popped.
Peterkin immediately let go and ran out of the cell, while Robinson cried
out: “You broke my arm!” Lambert said it probably was not broken and did not
1
A hammerlock is a routine arm hold accomplished by twisting a person’s arm behind
his back and pulling the arm up towards the shoulder.
2
Robinson was in a car accident in 2002 where he sustained a number of serious injuries.
He continues to suffer from physical disabilities resulting from the accident.
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release Robinson until Peterkin affirmed that it was. Lambert then picked
Robinson up off the floor and escorted him to medical. X-rays revealed a severe
spiral fracture of the right humerus that required surgery. Robinson underwent
reconstructive surgery that included putting a steel plate and 16 screws in his arm.
Robinson filed a complaint against Lambert asserting an excessive force
claim under 42 U.S.C. § 1983 and an assault and battery claim under Florida state
law. 3 Lambert moved for summary judgment, asserting qualified immunity under
federal law and statutory immunity under state law. The District Court denied his
motion, and Lambert appeals.
II.
We review de novo the District Court’s “disposition of a summary judgment
motion based on qualified immunity,” resolving all issues of fact in favor of the
non-moving party. Lee v. Ferraro,
284 F.3d 1188, 1190 (11th Cir. 2002). “We
then answer the legal question of whether the defendant is entitled to qualified
immunity under that version of the facts.”
Id. (citations and alterations omitted).
Qualified immunity protects government officials if “their conduct does not
violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982).
“The purpose of this immunity is to allow government officials to carry out their
3
Robinson also filed other claims against other defendants. These claims were dismissed
and are not at issue on this appeal.
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discretionary duties without the fear of personal liability or harassing litigation,
protecting from suit all but the plainly incompetent or one who is knowingly
violating the federal law.” Dang ex rel. Dang v. Sheriff, Seminole Cty. Fla.,
871
F.3d 1272, 1278–79 (11th Cir. 2017) (citations and alterations omitted).
To receive qualified immunity, the officer must show that he acted within
his discretionary authority.
Id. at 1279. Here, it is undisputed that Lambert acted
within his discretionary authority. The burden then shifts to the plaintiff to prove
1) that the officer violated a constitution right, and 2) that the right was clearly
established at the time of the violation. See Lewis v. City of W. Palm Beach,
561
F.3d 1288, 1291 (11th Cir. 2009). 4
A.
We begin with whether the facts alleged show a violation of a constitutional
right. Robinson claims that Lambert’s use of excessive force violated his
substantive due process rights under the Fourteenth Amendment. For an excessive
force claim, a pretrial detainee must show that the force used against him was
objectively unreasonable. Kingsley v. Hendrickson,
135 S. Ct. 2466, 2473 (2015).
This is a fact-specific inquiry based on “the perspective of a reasonable officer on
4
This two-step test is not mandatory, and can be performed in either order. See Pearson
v. Callahan,
555 U.S. 223, 236 (2009) (“While the [two-step test] is often appropriate, it should
no longer be regarded as mandatory.”). But it is “often beneficial” because it “promotes the
development of constitutional precedent.”
Id. We see no reason to depart from the typical
procedure in this case.
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the scene, including what the officer knew at the time, not with the 20/20 vision of
hindsight,” taking into account the legitimate n eed of jail officials to maintain
order and discipline in their facilities.
Id. Courts consider the following non-
exhaustive factors in determining the reasonableness of force:
the relationship between the need for the use of force and the amount
of force used; the extent of the plaintiff’s injury; any effort made by
the officer to temper or to limit the amount of force; the severity of the
security problem at issue; the threat reasonably perceived by the
officer; and whether the plaintiff was actively resisting.
Id.
Here, Officer Lambert was warranted in using force given Robinson’s
repeated refusal to obey commands to attend his first appearance. See Danley v.
Allen,
540 F.3d 1298, 1307 (11th Cir. 2008) (finding use of some force justified
when an inmate twice refused an order to return to his cell). And, at least initially,
the amount of force used here—pulling Robinson from his bunk and slamming him
against the wall—is consistent with what this Court has approved in the past. See
Bennett v. Parker,
898 F.2d 1530, 1533 (11th Cir. 1990) (holding that grabbing an
inmate by the throat and pushing him against the bars of his cell was not excessive
after the inmate failed to follow instructions and disrupted prison procedures).
Thus, the initial use of force in pulling Robinson from his bunk, slamming him
against the wall, and placing him in a hammerlock was reasonable.
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But the use of force is objectively unreasonable when it continues past the
need for such force. See
Danley, 540 F.3d at 1309 (“When jailers continue to use
substantial force against a prisoner who has clearly stopped resisting—whether
because he has decided to become compliant, he has been subdued, or he is
otherwise incapacitated—that use of force is excessive.”). Robinson was subdued
after Lambert and Peterkin pinned him against the wall for 30 to 45 seconds with
both hands behind his back in a hammerlock. He was not resisting and the officers
had complete control over his arms. There was no need to push him onto the desk
and then shove him with enough force to break his arm. See
id. (“Once a prisoner
has stopped resisting there is no longer a need for force, so the use of force
thereafter is disproportionate to the need.”). For that reason, the use of force
became excessive once there was no longer any need for it.
The extent of Robinson’s injuries also suggests the amount of force used
was objectively unreasonable. Robinson suffered a severe spiral fracture that
required reconstructive surgery. These injuries suggest Lambert used more force
than was reasonably needed to subdue a pretrial detainee who refused to go to
court but was not physically resisting. It is true that this factor is not dispositive if
the extent of the injuries was not foreseeable. See Cockrell v. Sparks,
510 F.3d
1307, 1311–12 (11th Cir. 2007) (“Although in this case the extent of the injury was
relatively extensive, this factor alone is not dispositive. There is no way [the
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officer] could have foreseen that a simple push would result in as much injury as
[the detainee] unfortunately suffered.”). And Lambert points out that a doctor
discovered preexisting structural weakness in Robinson’s arm due to reduced bone
density, which rendered it more vulnerable to a fracture. But we look to what the
officer knew or reasonably should have known at the time of the incident. See
Lee,
284 F.3d at 1200. While Lambert had no way of knowing of the preexisting
structural weakness in Robinson’s arm, Robinson did warn Lambert that he had a
spinal cord injury. This knowledge should have put Lambert on notice that
Robinson was more susceptible to injury from being pinned against a desk and
then shoved with his arms behind his back. Cf. Rodriguez v. Farrell,
280 F.3d
1341, 1352–53 (11th Cir. 2002) (finding that officer did not use excessive force in
handcuffing an arrestee where he had no knowledge or reason to know of the
arrestee’s recent elbow surgery even though it caused severe injury). Because
Lambert had notice of a preexisting condition that put Robinson at greater risk of
injury from the use of force, the relatively serious extent of the injuries is relevant.
Furthermore, Lambert did not temper or limit the amount of force used.
While the fact that Lambert promptly sought medical care for Robinson “tempers
the severity of the forceful response,”
Cockrell, 510 F.3d at 1312 (citations and
alterations omitted), our analysis does not end there. We find it far more
significant that after Lambert was told Robinson had a spinal cord injury, he
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responded, “Well, you’re going to have another one,” and escalated the use of
force. Lambert’s threat to inflict further injury belies any notion that he tempered
the use of force. 5
The remaining factors also point to the unreasonableness of the force used.
The severity of the security problem and the threat perceived by the officers were
minimal. Robinson refused to attend a court hearing—that was the extent of the
security problem. With all due respect to prison officials’ need to maintain order,
this is hardly a dire threat. He was not being detained for a violent crime, nor is
there any evidence that his behavior up to that point indicated a violent or unruly
disposition. When the officers entered the cell, Robinson was sitting on his bunk
with his arms to his side. At no point did he physically resist.
Under Robinson’s version of the facts, we find that Lambert violated his
constitutional right to be free from the use of excessive force. Lambert continued
to use significant force after there was no longer a need for it, and he threatened to
injure Robinson. The use of force resulted in a serious injury, the risk of which
Lambert should have been aware. This was objectively unreasonable in light of
the minimal security threat and Robinson’s lack of physical resistance.
5
Threats “can be relevant to what is constitutionally reasonable . . . as part of a totality of
circumstances.” Bozeman v. Orum,
422 F.3d 1265, 1271 n.11 (11th Cir. 2005), overruled on
other grounds by Kingsley,
135 S. Ct. 2466; see also Evans v. Stephens,
407 F.3d 1272, 1281–82
& n.12 (11th Cir. 2005). While the use of threatening language can be an appropriate tool for
prison officials to maintain order, this Court has drawn a distinction between threats evidencing
“a desire to restore order” and those indicating “a wish to sadistically cause harm.” See
Cockrell,
510 F.3d at 1312. Lambert’s threat falls in the latter category.
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B.
Next, we consider whether the violation of Robinson’s constitutional right
was clearly established. To determine if a right is clearly established, the
“dispositive inquiry . . . is whether it would be clear to a reasonable officer that his
conduct was unlawful in the situation he confronted.” Saucier v. Katz,
533 U.S.
194, 202 (2001), overruled on other grounds by Pearson,
555 U.S. 223. The
purpose of this requirement is to provide officers with notice that their conduct is
unlawful. See
id. at 206. For that reason, the notice “must be appropriately
specific considering the context of the case.” Pace v. Capobianco,
283 F.3d 1275,
1283 (11th Cir. 2002).
This Court has articulated three ways by which a right may be clearly
established: “(1) case law with indistinguishable facts . . . ; (2) a broad statement of
principle within the Constitution, statute, or case law . . . ; or (3) conduct so
egregious that a constitutional right was clearly violated, even in the total absence
of case law.”
Lewis, 561 F.3d at 1291–92.6 Thus, it is not necessary for a case to
be “directly on point.” See White v. Pauly,
137 S. Ct. 548, 551 (2017) (quotation
omitted). But the “existing precedent must have placed the statutory or
constitutional question beyond debate.”
Id. (quotation omitted). For a broad
6
We consider only “binding precedent—cases from the United States Supreme Court, the
Eleventh Circuit, and the highest court of the state under which the claim arose—to determine
whether the right in question was clearly established at the time of the violation.” Coffin v.
Brandau,
642 F.3d 999, 1013 (11th Cir. 2011).
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principle to clearly establish the law in a specific case, “it must do so with obvious
clarity to the point that every objectively reasonable government official facing the
circumstances would know that the official’s conduct did violate federal law when
the official acted.”
Coffin, 642 F.3d at 1015 (quotation omitted). In this case,
there is no binding case law with indistinguishable facts, leaving us to decide
whether Lambert’s conduct violated Robinson’s constitutional rights as a matter of
obvious clarity.
At the time of the alleged conduct, the standard for excessive force was
“whether that force was applied in a good faith effort to maintain or restore
discipline or maliciously or sadistically for the very purpose of causing harm.”
Bozeman, 422 F.3d at 1271.7 But the factors used to assess whether force was
excessive were the same. See
Cockrell, 510 F.3d at 1311.
It is well established in our case law that an officer cannot continue to use
force after there is no longer a need for it. See Williams v. Burton,
943 F.2d 1572,
1576 (11th Cir. 1991) (“The basic legal principle is that once the necessity for the
application of force ceases, any continued use of harmful force can be a violation
of the Eighth and Fourteenth Amendments, and any abuse directed at the prisoner
after he terminates his resistance to authority is an Eighth Amendment violation.”);
see also Ort v. White,
813 F.2d 318, 327 (11th Cir. 1987) (“A fourteenth
7
The Supreme Court in Kingsley shifted from this subjective standard to the objectively
reasonable test outlined in part II.A.
See 135 S. Ct. at 2473.
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amendment violation occurs in this context where prison officers continue to
employ force or other coercive measures after the necessity for such coercive
action has ceased.”). And we have made clear that if a detainee stops resisting, the
use of force is no longer justified. See
Danley, 540 F.3d at 1309 (“When jailers
continue to use substantial force against a prisoner who has clearly stopped
resisting—whether because he has decided to become compliant, he has been
subdued, or he is otherwise incapacitated—that use of force is excessive.”); see
also
Bozeman, 422 F.3d at 1272 (“On these assumed facts—especially given the
Officers’ continued use of force in a manner that was severe enough to render [the
detainee], at the very least, unconscious after [the detainee] had surrendered—we
conclude that one could draw a reasonable inference that the Officers’ use of force
was for the very purpose of causing harm: excessive force.”) (emphasis in
original).
We find that this well-established principle applies to this case with obvious
clarity. Based on Robinson’s version of the facts, he was pinned against the wall
with his arms behind his back while Officers Lambert and Peterkin pushed him
back and forth for approximately 30 to 45 seconds. At no point during this
interaction did he resist. After Robinson had been pinned against the wall for at
least 30 seconds without resisting, any objectively reasonable officer would know
that Robinson had been subdued. The continued use of force became unnecessary
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and unjustified. But Lambert proceeded to push Robinson face-down on the desk,
and then shove him with enough force to break his arm. Based on then current
law, this gratuitous display of force allows us to “draw a reasonable inference” that
Lambert acted with “the very purpose of causing harm” and was consequently
excessive. See
Bozeman, 422 F.3d at 1272.
It was also well established that “threatening comments are circumstantial
evidence of mental state that can be considered in determining the intent
underlying the use of force.” See
Cockrell, 510 F.3d at 1312. And Lambert’s
response to Robinson’s warning that he had a spinal cord injury—“Well, you’re
going to have another one”—evidences his sadistic intent to cause injury.
Compare
id. (explaining that officer’s threat to “shut the hell up” indicated “a
desire to restore order, not a wish to sadistically cause harm”), with
Bozeman, 422
F.3d at 1271 (using threats to “kick his ass” and telling the inmate he was in for a
“rude awakening” as evidence of bad faith). 8
We conclude that Lambert’s use of force was a clearly established violation
of Robinson’s constitutional right. The law provided that the continued use of
force after there is no longer a need for it is excessive. And the law provided that
threatening to cause further injury indicates sadistic intent. Coupling Lambert’s
continued use of force after Robinson was subdued with his threat to inflict further
8
See also supra n.5.
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injury, it is plain as a matter of obvious clarity that Lambert used force
“maliciously and sadistically with the very purpose of causing harm.”
Bozeman,
422 F.3d at 1271. Thus, he is not entitled to qualified immunity.
III.
Next, we turn to Lambert’s appeal that the District Court erred in denying
him statutory immunity under Florida Statute § 768.28(9)(a) for the assault and
battery claim. We review de novo the District Court’s denial of summary
judgment based on statutory immunity under Florida Statute § 768.28(9)(a). Keck
v. Eminisor,
104 So. 3d 359, 366–67 (Fla. 2012); see also Cummings v. DeKalb
Cty.,
24 F.3d 1349, 1353 (11th Cir. 1994). Again, we view the facts in the light
most favorable to the plaintiff.
Singletary, 804 F.3d at 1180.
Robinson alleges that Lambert committed assault and battery. In Florida, a
battery is “the infliction of a harmful or offensive contact upon another with the
intent to cause such contact or the apprehension that such contact is imminent.”
Quilling v. Price,
894 So. 2d 1061, 1063 (Fla. Dist. Ct. App. 2005). “Assault is
defined as an intentional, unlawful offer of corporal injury to another by force, or
force unlawfully directed toward another under such circumstances as to create a
fear of imminent peril, coupled with the apparent present ability to effectuate the
attempt.” Lay v. Kremer,
411 So. 2d 1347, 1349 (Fla. Dist. Ct. App. 1982). But
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Lambert’s appeal asserts that he is entitled to statutory immunity. The tort
immunity statute reads:
No officer, employee, or agent of the state or of any of its
subdivisions shall be held personally liable in tort or named as a party
defendant in any action for any injury or damage suffered as a result
of any act, event, or omission of action in the scope of her or his
employment or function, unless such officer, employee, or agent acted
in bad faith or with malicious purpose or in a manner exhibiting
wanton and willful disregard of human rights, safety, or property.
Fla. Stat. § 768.28(9)(a) (2017) (emphasis added).
The relevant inquiry for statutory immunity is “whether a reasonable trier of
fact could possibly conclude that the conduct was willful and wanton, or would
otherwise fall within the exceptions to the statute.” Furtado v. Yun Chung Law,
51
So. 3d 1269, 1277 (Fla. Dist. Ct. App. 2011); see also Thompson v. Douds,
852 So.
2d 299, 309–10 (Fla. Dist. Ct. App. 2003) (holding that summary judgment was
improper where there were genuine issues of material fact as to whether officers
acted with wanton and willful disregard for human rights).
For the reasons discussed in part II.B., we find that there is a genuine issue
of material fact as to whether Lambert acted with a malicious purpose. If Lambert
acted “maliciously or sadistically for the very purpose of causing harm,”
Bozeman, 422 F.3d at 1271, then it must be true that he acted with a malicious
purpose. Therefore, Lambert is not entitled to statutory immunity.
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The District Court’s dismissal of Lambert’s motion for summary judgment
is AFFIRMED.
16
