Norrell Sutherland v. Brian Allison

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11673 ELEVENTH CIRCUIT
FEB 9, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 9:09-cv-80872-JIC
NORREL SUTHERLAND, et al.,
Plaintiffs-Appellants,
versus
BRIAN ALLISON, et al.,
Defendants-Appellees,
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(February 9, 2011)
Before BLACK, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Norrel Sutherland appeals from the district court’s order granting summary
judgment on qualified immunity grounds to Defendants, Palm Beach County
Sheriff’s Office Deputies Brian Allison and Max Perez (the “Deputies”), in his
civil rights action, brought pursuant to 42 U.S.C. § 1983.1 In his complaint,
Sutherland alleges that the Deputies violated the Fourth Amendment when they
used excessive force in executing his arrest and violated the Fourteenth
Amendment when they were deliberately indifferent to his medical needs during
that arrest. The district court held, however, that the Deputies’ conduct during
Sutherland’s arrest comported with the Constitution and, accordingly, that the
Deputies were protected from Sutherland’s claims by the qualified immunity
doctrine. After thorough review of the record and the parties’ briefs, we agree.
We review de novo the district court’s resolution of a summary judgment
motion based on qualified immunity. McCullough v. Antolini, 559 F.3d 1201,
1202 (11th Cir. 2009). In undertaking this de novo review,
we are required to resolve all issues of material fact in favor of the
plaintiff. We then answer the legal question of whether the defendant
is entitled to qualified immunity under that version of the facts.
Indeed, we approach the facts from the plaintiff’s perspective because
the issues appealed here concern not which facts the parties might be
able to prove, but, rather, whether or not certain given facts showed a
violation of clearly established law.
1
Norrell and Nadia Sutherland have abandoned their claim pursuant to the Americans
with Disabilities Act, and the district court remanded Norrel Sutherland’s Florida common law
claim of battery and his wife Nadina Sutherland’s Florida common law claim of loss of
consortium to the state trial court.
2
Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002) (internal quotation marks,
citations, and alterations omitted).
The relevant facts, with disputed facts resolved in favor of Sutherland, are
these. On February 17, 2008, the Deputies were dispatched to a public street in
front of the Lake Worth Swap Shop after a local homeowner complained about
illegally parked vehicles. After ticketing some vehicles, Deputy Allison saw
Sutherland in a heated argument with a tow truck driver; Sutherland was standing
on the side of the road, yelling, and waving a parking ticket. Deputy Allison
directed Sutherland to move off of the road, and, after Sutherland refused and
initiated a verbal confrontation, Deputy Allison placed him under arrest.
When arresting Sutherland, Deputy Allison grabbed his left arm near the
shoulder, and pitched him forward so that the No Parking sign came within his line
of vision. Then, Deputy Allison put his face near Sutherland’s face, referred to
him as an obscenity, and another Palm Beach County Sheriff’s Office officer took
Sutherland’s right arm, which was severely injured in a previous incident, and
pulled it behind his back and towards his left arm. Throughout this time,
Sutherland resisted arrest. Eventually, Sutherland dropped to his knees while the
two officers and Deputy Perez attempted to handcuff him. Multiple eyewitnesses
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testified that Sutherland was struggling with the Deputies as they attempted to
handcuff him.
Sutherland testified that, after the Deputies began trying to handcuff him, he
told them that his right arm was “sick.” Sutherland also testified that, during the
handcuffing, one officer held Sutherland to the ground by placing his knee on his
back while Deputy Allison pulled on Sutherland’s right arm behind his back,
which caused Sutherland excruciating pain and lead Sutherland to “black out” for a
few moments. About an hour after his arrest, Sutherland was transported from the
scene to the police station. While at the scene, the Deputies offered to call the
paramedics and Sutherland declined. Sutherland, however, claims that later he
requested “medical help” for his arm, and that the Deputies did not do anything.
He saw a nurse at the police station before his release, but he again declined
medical attention for his arm. Upon his release, Sutherland went to the hospital
emergency room, had surgery on his right arm, and spent the ensuing week
recovering in the hospital. Sutherland continues to suffer some pain and reduction
in the movement of his right arm.
The district court granted summary judgment to the Deputies after finding
that their conduct during Sutherland’s arrest was protected by the qualified
immunity doctrine. The qualified immunity defense “balances two important
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interests -- the need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officers from harassment, distraction, and
liability when they perform their duties reasonably.” Pearson v. Callahan, 129
S.Ct. 808, 815 (2009). To be eligible for qualified immunity, the Deputies must
demonstrate that they were acting in the scope of their discretionary authority.
O’Rourke v. Hayes, 378 F.3d 1201, 1205 (11th Cir. 2004). “To determine whether
an official was engaged in a discretionary function, [courts] consider whether the
acts the official undertook are of a type that fell within the employee’s job
responsibilities.” Crosby v. Monroe County, 394 F.3d 1328, 1332 (11th Cir. 2004)
(internal quotation marks omitted).
Because it is undisputed that the Deputies acted within their discretionary
authority when they arrested Sutherland, the burden shifts to Sutherland to show
that qualified immunity should not apply. Lewis v. City of West Palm Beach, Fla.,
561 F.3d 1288, 1291 (11th Cir. 2009). “In analyzing the applicability of qualified
immunity, the Court has at its disposal a two-step process. Traditionally, a court
first determines whether the officer’s conduct amounted to a constitutional
violation. Second, the court analyzes whether the right violated was clearly
established at the time of the violation.” Id. (citations omitted); but see Pearson v.
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Callahan, 129 S.Ct. 808, 818 (2009) (concluding that, while the two-step inquiry is
“often appropriate,” it is not “mandatory in all cases”).
A claim of excessive force is “properly analyzed under the Fourth
Amendment’s ‘objective reasonableness’ standard.” Graham v. Connor, 490 U.S.
386, 388 (1989); Long v. Slaton, 508 F.3d 576, 580 (11th Cir. 2007). In
determining the reasonableness of the force applied, we look at the fact pattern
from the perspective of a reasonable officer on the scene with knowledge of the
attendant circumstances and facts, and balance the risk of bodily harm to the
suspect against the gravity of the threat the officer sought to eliminate.
McCullough, 559 F.3d at 1206. “The ‘reasonableness’ of a particular use of force
must be judged from the perspective of a reasonable officer on the scene, rather
than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. “The calculus
of reasonableness must embody allowance for the fact that police officers are often
forced to make split-second judgments -- in circumstances that are tense, uncertain,
and rapidly evolving -- about the amount of force that is necessary in a particular
situation.” Id. at 396-97.
The relevant factors in our determination of reasonableness include: “the
severity of the crime at issue, whether the suspect poses an immediate threat to the
safety of the officers or others, and whether he is actively resisting arrest or
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attempting to evade arrest by flight.” Lee, 284 F.3d at 1198 (internal quotation
marks and citation omitted). In addition, the extent of the injury suffered by the
plaintiff is not determinative, because “reasonable force does not become excessive
force when the force aggravates (however severely) a pre-existing condition the
extent of which was unknown to the officer at the time.” Id. at 1200 (internal
quotation marks and citation omitted).
Viewing the facts in the light most favorable to Sutherland, the Deputies’
conduct did not amount to a constitutional violation. While Sutherland’s arrest did
not involve a serious crime, he was standing on a public roadway engaging in a
verbal confrontation with police officers and, when those officers attempted to
handcuff him, he actively and continuously resisted arrest. In addition, while he
was resisting arrest, Sutherland did not inform the Deputies that his right arm was
previously injured until after they had begun placing the handcuffs on him.
Moreover, even once he was being handcuffed, Sutherland failed to inform the
Deputies of his arm injury in any meaningful way; all he said, while continuing to
resist being placed in handcuffs, was that his right arm was “sick.” He never
explained what “sick” meant or the extent of his pre-existing injuries, and never
told the Deputies their conduct was exacerbating his injury.
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While Sutherland alleges that his injury is apparent upon viewing his arm, he
was wearing a long-sleeved shirt that covered his right arm at the time of his arrest.
And, although Sutherland’s hand, which also shows signs of a severe injury, was
visible, there was nothing on his hand to indicate that his arm was also injured. As
we have noted, “a police officer need not credit everything a suspect tells him . . .
[and] [t]his idea is especially true where the officer is in the process of handcuffing
a suspect.” Rodriguez v. Farrell, 294 F.3d 1276, 1278 (11th Cir. 2002).
Finally, there is no evidence that the Deputies used any more force than they
would usually use to handcuff any person who is the subject of an arrest. All the
record reveals, when viewed in the light most favorable to Sutherland, is that the
Deputies followed their usual protocol in executing a routine handcuffing of an
individual. The Deputies pulled Sutherland’s arm behind his back after they
placed him on the ground and handcuffed his hands together behind his back.
They had no reason to know that they should not follow their standard procedure
with this particular arrestee, especially since he was actively resisting the arrest.
The use of such de minimis force, without more, cannot support an excessive force
claim. Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000).
“Fourth Amendment jurisprudence has long recognized that the right to
make an arrest . . . necessarily carries with it the right to use some degree of
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physical coercion or threat thereof to effect it.” Graham v. Connor, 490 U.S. 386,
396 (1989). There is no evidence the Deputies used any level of force other than
that a reasonable officer would use under similar circumstances. Accordingly, the
district court did not err in finding that the Deputies had qualified immunity from
Sutherland’s excessive force claim.
The Deputies are also entitled to qualified immunity on Sutherland’s
deliberate indifference claim, which is premised on Sutherland’s allegation that the
Deupites acted with deliberate indifference towards his fractured arm during the
hour between his arrest and his arrival at the police station. There was no
constitutional violation here.
To prevail on his claim of deliberate indifference to serious medical need
under the Fourteenth Amendment, Sutherland must show: “(1) a serious medical
need; (2) the defendant[‘s] deliberate indifference to that need; and (3) causation
between that indifference and the plaintiff’s injury.” Mann v. Taser Int’l, Inc., 588
F.3d 1291, 1306-07 (11th Cir. 2009). “A serious medical need is one that has been
diagnosed by a physician as mandating treatment or one that is so obvious that
even a lay person would easily recognize the necessity for a doctor’s attention.”
Id. at 1307 (internal quotation marks omitted). To prove “deliberate indifference”
to that serious medical need, the following must be shown: “(1) subjective
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knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that
is more than gross negligence.” Youmans v. Gagnon, 626 F.3d 557, 564 (11th Cir.
2010) (internal quotation marks and brackets omitted).
While a fractured arm that requires surgery and a subsequent hospital stay is
an objectively serious medical need, Sutherland has not demonstrated that the
Deputies had any subjective knowledge of a risk of serious harm or that they had
acted with more than gross negligence. First, there is no indication on the record,
again viewed in the light most favorable to Sutherland, that either of the Deputies
had any subjective knowledge that his arm had been fractured or was otherwise
injured. Sutherland never informed the Deputies that he believed that was the case
-- he stated only vaguely that his arm was “sick” and his injured arm was covered
by a long-sleeved shirt -- and, when the Deputies offered him medical assistance,
Sutherland declined. Nor, even if they had known about the fracture, did the
Deputies act with more than gross negligence. They offered to call the paramedics
to the scene and Sutherland declined. In addition, before driving to the police
station, the Deputies adjusted Sutherland’s handcuffs so that they were in front of,
as opposed to behind, his body. After all, “[t]he best response to a serious medical
need is not required by federal law in these cases,” id., and it is unclear what more
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the Deputies could have done with an arrestee who does not state the nature of his
injury and who declines medical assistance.
Accordingly, the district court’s grant of summary judgment to the Deputies
is AFFIRMED.
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