CECILIA M. ALTONAGA, District Judge.
Defendant Belfort is a police officer employed by the City of Miami Police Department ("Miami Police Department"). (See Belfort Decl. ¶ 1 [ECF No. 12-1]). He has been employed in this capacity for the past sixteen years. (See id.).
In October 2006 Belfort was assigned to the Crime Suppression Unit of the Miami Police Department. (See id. ¶ 2). On October 11, 2006, Belfort was conducting surveillance of a duplex known for narcotics sales. (See id. ¶ 3). At the time of the surveillance, he was inside a van parked in front of the duplex. (See id. ¶ 4). Belfort maintains he did not observe other police officers stop Lelieve's vehicle, he was not there when the officers arrested Lelieve, and he "never came into physical contact" with Lelieve. (Id. ¶ 16; see id. ¶¶ 14, 15).
Lelieve disputes Belfort's assertion that he was not involved in Lelieve's arrest. Lelieve contends that Belfort arrived on the scene and "was kicking and stomping him as well." (Pl.'s Compl. in Case No. 09-20574-Civ-Lenard/White ("Former Complaint"), at 6
Following the assault, Lelieve was "placed into the rear of the awaiting Patrol Car bleeding from his mouth[][and] spitting blood." (Id. 6). The police took Lelieve to Jackson Memorial Hospital ("JMH") for medical treatment. (See id. 7). The medical staff examined Lelieve and then released him back into police custody. (See id.). Sometime thereafter, Lelieve returned to JMH to undergo surgery for abdominal internal bleeding. (See id.). At most two hours elapsed between the time he was placed in the patrol car following his assault to the time he was rushed to JMH for surgery (his second trip to JMH that day). (See id. 7-8).
In his Amended Complaint, Lelieve asserts several claims against Belfort. At issue in the present Motion are two of them. First, under Count III, Lelieve alleges that Belfort deprived Lelieve of his civil rights by demonstrating deliberate indifference to his serious medical needs in violation of 42 U.S.C. section 1983. (See Am. Compl. 9). Specifically, Lelieve asserts that he had a serious medical condition which required "immediate medical attention" that was "so obvious that even a lay person would easily recognize the necessity for prompt medical attention." (Id. ¶ 55). Second, under Count VI of the Amended Complaint, Lelieve alleges that Belfort breached his duty of care by "using excessive force against Lelieve and failing to provide immediate medical care." (Id. ¶ 88). In his Motion, Belfort asserts that he is entitled to qualified immunity from the section 1983 claims identified in Count III, and that Count VI fails to state a cause of action for negligence.
Summary judgment shall be rendered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In making this assessment, the Court "must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party," Stewart v. Happy Herman's Cheshire Bridge,
Belfort's Motion addresses the qualified-immunity defense, and as noted, the parties dispute whether Belfort took part in Lelieve's arrest or assaulted Lelieve by punching, kicking, or stomping him. Nonetheless, "`[t]o deny summary judgment any time a material issue of fact remains ... could undermine the goal of qualified immunity to avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment.'" Robinson v. Arrugueta, 415 F.3d 1252, 1257 (11th Cir. 2005) (quoting Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (quotations and citations omitted)). Thus,
Id.
Belfort argues he is entitled to qualified immunity from the section 1983 claims identified in Count III. (See Mot. 5-10). "Qualified immunity offers complete protection for government officials sued in their individual capacities if their conduct `does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Kingsland v. City of Miami, 382 F.3d 1220, 1231 (11th Cir.2004) (quoting Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir.2002)). In order to be entitled to the qualified-immunity defense, a government official must demonstrate that the acts complained of were committed within the scope of the officer's discretionary authority. Id. at 1232. Once the officer has done so, "the burden shifts to the plaintiff to show that qualified immunity is not appropriate." Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir.2002); see also McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir. 2007); Montoute v. Carr, 114 F.3d 181, 184 (11th Cir.1997) ("[O]nce an officer or official has raised the defense of qualified immunity, the burden of persuasion as to that issue is on the plaintiff."). This is embodied in the Eleventh Circuit's two-part Zeigler/Rich analysis:
Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir.1991) (quoting Rich v. Dollar, 841 F.2d 1558, 1563 (11th Cir.1988)); Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir.1983) (per curiam).
Snider v. Jefferson State Cmty. Coll., 344 F.3d 1325, 1328 (11th Cir.2003); Montoute, 114 F.3d at 184 ("[T]he qualified immunity standard is broad enough to cover some `mistaken judgment,' and it shields from liability `all but the plainly incompetent or those who knowingly violate the law.'") (quoting Malley v. Briggs, 475 U.S. 335, 343, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).
Here it is undisputed that Belfort was a government official performing discretionary functions at the time of the conduct at issue. Therefore, the burden shifts to Lelieve to demonstrate that Belfort violated a clearly established statutory or constitutional right to overcome the qualified-immunity defense.
Lelieve concedes that "[c]laims involving the mistreatment of ... pretrial detainees in custody are governed by the Fourteenth Amendment's Due Process Clause instead of the Eighth Amendment's Cruel and Unusual Punishment Clause, which applies to such claims by convicted prisoners." (Resp. 4 (quoting Bozeman v. Orum, 422 F.3d 1265, 1271 (11th Cir. 2005))). Thus, to the extent that Lelieve alleges in Count III of his Amended Complaint that his Eighth Amendment rights were violated after his arrest, that claim is dismissed with prejudice.
A Fourteenth Amendment claim of deliberate indifference to medical needs under 42 U.S.C. section 1983 requires four elements: (1) an objectively serious medical need, (2) an objectively insufficient response to that need, (3) subjective awareness of facts signaling the need, and (4) an actual inference of required medical action
The Court notes that "pretrial detainees are afforded the same protection as prisoners, and cases analyzing deliberate indifference claims of pretrial detainees and prisoners can be used interchangeably." McDaniels v. Lee, 405 Fed.Appx. 456, 458 (11th Cir.2010). The Eleventh Circuit has held that a prison official acts with deliberate indifference by intentionally delaying medical treatment for an inmate who has a life-threatening condition or an urgent medical condition that would be exacerbated by delay. See Goebert v. Lee Cnty., 510 F.3d 1312, 1330 (11th Cir.2007).
Qualified immunity cases involving a delay in medical treatment "are highly fact-specific and involve an array of circumstances pertinent to just what kind of notice is imputed to a government official and to the constitutional adequacy of what was done to help and when." Bozeman, 422 F.3d at 1274. Most cases involving deliberate indifference are "far from obvious violations of the Constitution." Id.
In the present case Lelieve asserts the following:
(Resp. ¶¶ 4-6). Lelieve argues that Belfort demonstrated "an objectively insufficient response" to Lelieve's medical needs and is therefore not entitled to a qualified-immunity defense. (Id. 6). Specifically, Lelieve asserts: (1) Belfort failed to seek immediate medical attention for Lelieve, (2) Belfort is not allowed to rely on the medical opinion of JMH's staff releasing Lelieve, and (3) Belfort failed to follow Miami Police Department orders. (See id. 6-9).
Belfort refutes that he was deliberately indifferent to Lelieve's medical needs because (a) internal bleeding is not objectively obvious to a layperson, and (b) Lelieve has not presented evidence of an objectively insufficient response to his medical needs. (See Mot. 7). The Court addresses each argument in turn.
According to Lelieve, Belfort punched, kicked, and stomped on Lelieve following his arrest. (See Former Compl. 6). Sometime thereafter, Lelieve was "placed into the rear of the awaiting Patrol Car bleeding from his mouth[][and] spitting blood."
In dispute, therefore, is whether Lelieve had a serious medical need that was objectively obvious. Such disputed facts, however, do no not compel the Court to deny summary judgment in this case. See Robinson, 415 F.3d at 1257 ("Material issues of disputed facts do not foreclose the grant or denial of summary judgment based on qualified immunity."). What the Court must do — considering the facts in the light most favorable to Lelieve — is determine whether Lelieve's injuries would have been obvious to another officer in Belfort's shoes.
The facts of a recent Eleventh Circuit case are illustrative. In Fernandez v. Metro Dade Police Dep't, 397 Fed.Appx. 507 (11th Cir.2010), the plaintiff, Juan B. Fernandez, asserted that
Id. at 509. Following this assault, the police took Fernandez to the police station rather than providing medical assistance. See id. He remained at the police station for "about nine hours without water or medical treatment while he was in pain, confused, disoriented[.]" Id. Fernandez was later taken to Ward D of JMH. See id.
The Eleventh Circuit held that Fernandez had not demonstrated an objectively serious medical need for two reasons.
Id. at 512 (internal citation omitted).
The facts and the absence of facts in this case are strikingly similar. First, Lelieve asserts Belfort kicked and stomped on him, much as the officers did to Fernandez. Second, Lelieve walked to the patrol car bleeding from his mouth, similar to Fernandez. Third, Lelieve does not assert that his bleeding continued after entry into the police car, and neither did Fernandez. Fourth, Lelieve was taken to JMH,
The parallels between the facts in Fernandez and the instant facts are instructive when trying to determine what another officer would have been on notice of at the time of Lelieve's assault. Fernandez was kicked, stepped on, punched in the head and ribs, and his face was slammed into the trunk of a vehicle. See Fernandez, 397 Fed.Appx. at 509. On these facts the Eleventh Circuit held there was no serious medical need. See id. at 512. Here, Belfort kicked and stomped on Lelieve, yet Lelieve's injuries were apparently minor enough to allow JMH's medical staff to release him after finishing their medical examination. If assaulting Fernandez resulted in no serious medical need, a standard that is met on a showing that the need "is so obvious that a lay person would recognize the need for medical treatment," Burnette v. Taylor, 533 F.3d 1325, 1330 (11th Cir.2008), surely a similar assault on Lelieve — minus a head slam into a vehicle trunk — would not necessarily indicate to a reasonable officer that Lelieve had a serious medical need that required immediate medical attention, even if Belfort had punched and kicked Lelieve.
As a result, the Court finds that Belfort was not on notice of Lelieve's injuries because they were not objectively obvious.
Even assuming that Belfort was on notice of the seriousness of Lelieve's injuries, Lelieve has failed to put forth sufficient evidence demonstrating that Belfort's failure to administer immediate medical attention violated Lelieve's constitutional rights. "Deliberate indifference may result not only from failure to provide medical care at all, but also from excessive delay." Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1317 (11th Cir.2010). Here, "Lelieve is alleging deliberate indifference for the delay caused by Belfort in failing to provide him immediate medical attention." (Resp. 7). Specifically, Lelieve contends that following his assault he "was placed in the rear of the ... Patrol Car .... [and not] rushed into surgery for internal injury and bleeding" until within two hours later. (Former Compl. 6; see also Resp. ¶ 7).
The Court acknowledges that some period of time elapsed after JMH released Lelieve after his first visit and he was later re-admitted to JMH for surgery. But as the Court discusses below, Belfort was entitled to rely on JMH's initial medical opinion releasing Lelieve. Belfort, therefore, was not responsible for the two hours that elapsed from the time Lelieve was placed in the patrol car to the time he was rushed to JMH for surgery. In addition, there is no record evidence suggesting that Belfort denied Lelieve's requests for medical treatment at any point during the day. Cf. Westlake v. Lucas, 537 F.2d 857, 860 (6th Cir.1976) (A "prisoner states a proper cause of action when he alleges that prison authorities have denied reasonable requests for medical treatment in the face of an obvious need for such attention...."). Rather, Lelieve was driven to JMH "after he was arrested and complained of injuries." (Mot. 7).
In sum, Lelieve contends the entire ordeal amounts to a constitutional violation because Belfort's actions were not "immediate." (Resp. 7). But Lelieve presents no evidence to support this. By contrast, from the record it appears that Lelieve was assaulted, placed into a police car, and then taken to JMH for medical treatment. Even viewing the evidence in the light most favorable to Lelieve, it is not insufficient to have transported him to the hospital following his assault. Nor would a reasonable factfinder conclude such action constitutes an "excessive delay" rising to a constitutional violation sufficient to overcome a qualified-immunity defense.
Nonetheless, Lelieve maintains that it is "well-settled law" in the Eleventh Circuit that delays of a couple of hours may constitute deliberate indifference to a serious medical need. (Resp. 8). For support he cites the following cases: Brown, 894 F.2d at 1538-39 (finding one defendant was deliberately indifferent to the plaintiff's medical needs because the officer delayed treatment for a few hours); Aldridge v. Montgomery, 753 F.2d 970, 972-73 (11th Cir.1985) (treatment was delayed for two and a half hours after the plaintiff had a bleeding cut under his eye); Calhoun v. Thomas, 360 F.Supp.2d 1264, 1282 (M.D.Ala.2005) (medical care was refused during a six hour interrogation while detainee suffered from a gunshot wound); and Bozeman, 422 F.3d at 1273-74 (fourteen minute delay while the plaintiff was unconscious).
These four cases, however, are distinguishable because they all involved a delay from the time the officers discovered the plaintiff was injured to the time medical
In sum, Lelieve has not presented evidence — therefore not meeting his burden to overcome a qualified-immunity defense — to show that Belfort responded insufficiently to Lelieve's medical needs.
In arguing that Belfort is not entitled to qualified immunity, Lelieve further contends that "Belfort is not entitled [to] rely on a medial [sic] staff's opinion releasing Lelieve from Ward D when Belfort knew that he caused critical life threatening internal injuries on Lelieve, and did nothing to obtain proper medical care for him." (Resp. 7). The Court disagrees.
The instant case is factually similar to Townsend v. Jefferson County, 601 F.3d 1152 (11th Cir.2010). In Townsend, the plaintiff detainee suffered a miscarriage while in prison and alleged deputies violated her civil rights because the deputies were deliberately indifferent to her serious medical need: (a) by failing to provide adequate medical treatment; and (b) by failing to intervene when the plaintiff received inadequate medical care. See id. at 1156-57. In Townsend, each deputy knew that a nurse had seen and spoken to the plaintiff and they were aware that the nurse had determined that the plaintiff's condition was "not an emergency." Id. at 1158. The Eleventh Circuit ruled:
Id. at 1159 (internal citation omitted).
Here, Lelieve concedes that he was seen by medical staff at JMH and released back to the police. As in Townsend, Lelieve has not presented record evidence demonstrating that his situation was so obviously dire that Belfort must have known that the JMH medical staff grossly misjudged Lelieve's condition; while there is little debate that internal bleeding is a dire condition, it could not have been "obvious" to a lay officer that Lelieve was suffering internal bleeding when the only external signal Lelieve displayed was a bloody mouth and spitting blood — of which the only record evidence was at the time Lelieve entered the patrol car and not thereafter. Moreover, a plaintiff who "complains that delay in medical treatment [rises] to a constitutional violation must place verifying medical evidence in the record to establish the detrimental
Lelieve also asserts that Belfort was deliberately indifferent because he did not follow Miami Police departmental orders. (See Resp. 7-8). Specifically, Lelieve quotes two sections of the departmental orders. First, if a "`subject complains of pain or injury; or in the opinion of the concerned officer or supervisor, has an apparent injury requiring medical attention, officers shall request a fire-rescue unit to be dispatched to the scene.'" (Id. 8) (quoting City of Miami Police Department section 21.4.1.21, titled "Medical Attention"). Second, an officer must complete a "Response to a Resistance Report" when a subject has been, among other things, struck or kicked, or when there is a complaint of injury or injury is visible. (Id.). Lelieve asserts that such procedures are "clearly established law" and support his position that by not following such orders, Belfort displayed deliberate indifference. (Id.).
Decisions of the United States Supreme Court, the Eleventh Circuit, and the Supreme Court of Florida can clearly establish constitutional law in this jurisdiction. See McClish, 483 F.3d at 1237. Failure to follow procedures, by itself, does not rise to the level of deliberate indifference. See Andujar v. Rodriguez, 486 F.3d 1199, 1204 n. 5 (11th Cir.2007) (noting that "Andujar argues that a City of Miami Rescue Policy required Newcomb and Barea to transport him to a treatment facility. But this observation, even if true, misses the point.... Failure to follow procedures does not, by itself, rise to the level of deliberate indifference because doing so is at most a form of negligence.") (internal quotation marks and citation omitted).
Belfort correctly points out that the departmental orders at issue here did not come from the United States Supreme Court, Eleventh Circuit, or the Florida Supreme Court. (See Reply 4-5 [ECF No. 83]). The orders were promulgated by the Miami Police Department. The Court, therefore, cannot consider them when looking to determine if Belfort's actions violated clearly established constitutional law. Lelieve cannot bootstrap a constitutional violation onto a departmental order violation.
In sum, Lelieve has not met his burden to demonstrate that Belfort violated a clearly established statutory or constitutional right to overcome the qualified-immunity defense. Specifically, Lelieve has not demonstrated that the seriousness of his medical need was objectively obvious; he has not presented evidence that Belfort responded insufficiently to his medical need; nor has Lelieve shown that the Miami Police departmental orders were clearly established law. Belfort, therefore, is entitled to qualified immunity and as a result, Lelieve cannot survive summary judgment on Count III.
In his Motion, Belfort claims Lelieve fails to state a cause of action for the negligent use of excessive force, and the
"`[I]t is not possible to have a cause of action for negligent use of excessive force because there is no such thing as the negligent commission of an intentional tort.'" Lewis v. City of St. Petersburg, 260 F.3d 1260, 1263 (11th Cir.2001) (quoting City of Miami v. Sanders, 672 So.2d 46, 48 (Fla. 3d DCA 1996)). However, a "separate negligence claim based upon a distinct act of negligence may be brought against a police officer in conjunction with a claim for excessive use of force." Id. (quoting Sanders, 672 So.2d at 48). But the negligence part must relate to something other than the application of force during the arrest. See id. "It cannot serve as the exclusive basis for liability in an excessive force claim." Sanders, 672 So.2d at 48.
Under Count VI of the Amended Complaint titled, "Negligence," Lelieve alleges Belfort breached his duty of care by (a) using excessive force against Lelieve; and (b) failing to provide Lelieve immediate medical care. (See Am. Compl. ¶ 88). First, regarding the excessive force claim, the ruling in Sanders compels a summary dismissal. See Sanders, 672 So.2d at 48 ("[T]here is no such thing as the negligent commission of an intentional tort.").
Regarding the second claim, however, a general dispute over material facts exists sufficient to preclude summary judgment. Lelieve alleges Belfort "had a duty to exercise care in its [sic] police duties." (Am. Compl. ¶ 87). According to Lelieve, Belfort allegedly breached his duty by failing to provide Lelieve with immediate medical care. (See id. ¶ 88). By contrast, Belfort contends that he "was not present for [Lelieve's] arrest and there is no record evidence to indicate [he] knew that [Lelieve] required medical care...." (Mot. 11). In his Reply, Belfort includes only a single sentence addressing Lelieve's negligence claim regarding excessive force and omits reference to his negligence claim regarding Belfort's alleged failure to render immediate medical care. (See Reply 5 [ECF No. 83]).
As discussed, Belfort's alleged failure to render immediate medical attention does not rise to the level of a constitutional violation. A reasonable factfinder may, however, find Belfort negligent for failing to summon fire rescue pursuant to departmental orders, or follow other procedures mandated by the Miami Police Department. Therefore, genuine issues of material fact exist surrounding Belfort's knowledge, involvement, and reaction to the situation sufficient to survive a summary judgment motion. Thus, to the extent Lelieve's claim of Belfort's failure to render immediate medical care is a separate negligence claim brought in conjunction with the excessive force claim, it will be allowed to proceed. See Sanders, 672 So.2d at 48.
Based on the foregoing, it is
