PAUL G. BYRON, UNITED STATE DISTRICT COURT.
William Howard was arrested and booked into an Orlando jail in late 2016 after a domestic incident. Shortly thereafter, he suffered a fractured neck when guards tackled him to the ground in his cell during a use of force incident, and he died the next day. Those events form the basis of this action. Now, Plaintiff Carolyn
Each Defendant now moves for summary judgment, with the following motions, responses, and replies before the Court:
With briefing complete, the matter is ripe.
On November 16, 2016, William Howard, a seventy-five-year-old man, was arrested for aggravated battery with a deadly weapon against his wife. (Doc. 94, ¶ 1). Mr. Howard disclosed to medical staff numerous medical problems—including hypertension, asthma/COPD, high cholesterol, and glaucoma—when he was booked into the Orange County Jail (the "
On November 18, Dr. Leonard Branch evaluated Mr. Howard and found him "very confused and unable to answer questions in a reality[-]based manner." (OCCHS 09631-33). Mr. Howard rambled, acted as if he knew Mr. Branch when he didn't, and became visibly agitated by his continued detention. (Doc. 94-4, ¶ 4; OCCHS 09631-33). After the evaluation, Dr. Branch terminated Mr. Howard's suicide prevention status and placed him on psychological observation status. (Doc. 94-4, ¶ 5; OCCHS 09631-33).
Later that afternoon, at approximately 5:32 p.m., the nurse on shift for Mr. Howard's cell, Penelope Gray, LPN, entered a progress note stating that correctional officers had difficulty dressing him and could not move him from the safety cell. (OCCHS 09619, 09621).
Night-shift staff then came in to replace day-shift staff. Corporal Padilla
At some point, the decision was made to relocate Mr. Howard again. Officer Padilla testified that "it was relayed by mental health and medical staff, that we needed to move him due to operational needs due to the — it was busy that day." (Doc. 78-14, 132:3-8). According to Officer Padilla, an influx of detainees was expected because of "some type of game" that night, and the safety cell "needed to be open." (Doc. 78-13, 108:5-9; Doc. 78-14, 132:9-13).
In anticipation of moving Mr. Howard, Officer Padilla requested that medical staff evaluate him again. (Doc. 78-13, 112:8-113:3). Mental Health Specialist ("
Having resolved to move Mr. Howard, Officers first attempted a voluntary move. The Officers unsuccessfully tried to coax Mr. Howard toward the food port to be handcuffed. (Doc. 78-14, 154:25-155:9; Doc. 94, ¶ 22). Because of his impaired vision, officers "bang[ed] [o]n the cell door" to guide Mr. Howard toward the noise to be handcuffed. (Doc. 78-14, 146:22-147:9).
After abandoning a voluntary extraction, Officer Padilla purportedly took time to plan a use of force action to move Mr. Howard. (Doc. 78-14, 173:8-19). Officer Padilla requested Officer Wilson assist in the use of force (Doc. 78-17, 35:4-10), and recruited Officer Nelson to operate a handheld camera to film the extraction, per Jail policy (Doc. 78-11, 54:11-55:4; Doc. 78-14, 181:23-182:1). Besides Officer Nelson recording, a camera attached to a stationary tripod recorded the events. (Doc. 94, ¶ 33).
Officers then put the plan into action. First, they tried one last time to convince Mr. Howard to approach the door to be handcuffed and warned that "force would be used" if he did not comply. (Video 1; Video 2). Next, Officer Wilson pepper sprayed Mr. Howard through the food port. (Video 1; Video 2). As they prepared to enter, Officer Padilla instructed his Officers, "[O]pen it up, take him down, put him into prone, and let's get him secured." (Video 1; Video 2).
The Officers then entered the cell, and a flurry of action ensued.
Next, Officers moved Mr. Howard out of his safe book cell. While he continued coughing and wheezing, Officer Padilla directed the others to "assist him to his feet." (Video 2). With Mr. Howard's head hanging limp, Officers LeBlanc and Wilkinson propped him up with his knees touching the floor and torso held upright by Officers. (Id.). One of the Officers instructed Mr. Howard to "get up" and walk to a new cell. (Id.). Mr. Howard did not respond to this command, and his head and body remained limp. (Id.).
Laying face-down and naked on the cell floor, Mr. Howard was motionless for about five minutes. (Video 2). When Officers returned with medical staff, he was in the same position that he was left in, except his left hand had moved slightly. (Id.).
Nurse Mendoza, who was assigned to supervise Mr. Howard's cell, was the first
Nurse Mendoza later testified that she observed Mr. Howard breathing regularly during her visual observation. (Doc. 78-9, 40:6-11). She also maintains that he was moving his "arms and legs, feet and hands[, a]ll extremities" without difficulty. (Id. 41:6-17). The Court pauses briefly to note that Video 2 paints a starkly different picture, in which Mr. Howard does not move his legs whatsoever, and he struggles to move his arms after lying motionless for several minutes.
Nurse Martin would testify that he was concerned for Mr. Howard's welfare and "tr[ied] to find a reason to — to send him to the hospital, so — but there were no injuries, nothing actionable." (Doc. 78-7, 77:4-9). Nurse Martin concluded that his visual assessment "was sufficient," though he acknowledged that certain injuries are not identifiable from a visual inspection. (Id. 78:3-79:21). Neither Nurse Martin nor Nurse Mendoza conducted more than a visual inspection of Mr. Howard (or even go into his cell) that night despite his explicit complaints that he could not move his legs and watching him lay nearly motionless on a concrete floor minutes after a use of force event. (Video 2).
After the group walked away, Mr. Howard can be seen struggling to turn over— which he just barely accomplishes—using only his arms. (Id.). The camera on the tripod stopped recording a few minutes after the Nurses and Officers walked away. (Id.). In the approximately thirty-minute span of time in which the tripod recorded the new cell, Mr. Howard's legs do not appear to move and Mr. Howard only manages to roll over from a prone to a supine position. (Id.).
In the succeeding hours, regular cell checks continued but little changed. Officers LeBlanc and Wilkinson checked on Mr. Howard every thirty minutes until their shifts ended at 6:00 a.m. on November 19. (Doc. 78-5, 134:9-11; Doc. 78-16,
Nurse Mendoza entered a 6:09 a.m. progress note on November 19, 2016, saying:
(Doc. 94, ¶ 55).
Nurse Gray interacted with Mr. Howard during her November 19 day shift.
At approximately 7:00 p.m. that evening, Nurse Distin relieved Nurse Gray (who had already left) of her post overseeing Mr. Howard's cell in the acute mental health ward. (Doc. 78-1, 22:6-13; 24:16-17). According to Nurse Distin, she was briefed on day-shift happenings by Nurse Martin, mentioned no uses of force against Mr. Howard or his condition generally. (Id. 27:15-28:16). When Nurse Distin approached Mr. Howard's cell for the first time, she saw him laying on his back and learned that he "wasn't going to get up to the door." (Id. 24:21-23). A nurse progress note entered by Nurse Distin states:
(Doc. 94, ¶ 65; OCCHS 09605). Nurse Distin apparently did not take immediate action to address Mr. Howard's complaint that he could not move his legs, instead opting to simply relay the complaint to her supervisor. (Doc. 78-1, 37:14-38:1).
At approximately 10:00 p.m., Nurse Distin found Mr. Howard unresponsive in his cell. (Doc. 94, ¶ 66). He was taken to the hospital by ambulance and died the next morning. (Id. ¶¶ 66-67). The medical examiner classified Mr. Howard's death as a homicide and concluded that it was "the result of hypoxic encephalopathy due to a neck fracture with cervical spinal cord trauma, which was due to blunt force." (Doc. 99-6, p. 4).
Following an investigation, Dr. Robert J. Buck, III, the County's Corrections Health Services Department Medical Director, disciplined Nurses Gray and Mendoza by written reprimand for violation of Jail policies and failing to document and follow through on patient care. (Doc. 78-21, ¶¶ 12-13; Doc. 94, ¶ 68). Dr. Buck fired Nurse Martin for similar reasons. (Doc. 78-21, ¶ 14; Doc. 94, ¶ 69).
After uses of force, Jail policy requires medical staff to "conduct an assessment of the inmate involved...and provide treatment as possible." (Doc. 99-3, 10:3-25, 11:12-18). Where a neck injury is suspected, Jail policy dictates (and the Nurse Defendants' education instructs) that the suspected-injured neck be supported to "avoid lateral head movement." (Id. 49:2-6; see also Doc. 78-7, 30:6-24). Known or suspected neck injuries are considered medical emergencies, that under Jail policy require special treatment. (Doc. 99-3, 51:6-52:21). A "medical emergency" can be declared by a patient, officer, or nurse, setting in motion additional evaluations and protocols for the possibly-injured patient. (Id. 52:2-21).
On August 10, 2017, Mr. Howard's family members sued individually and on behalf of his estate. (Doc. 1). The Complaint proceeds in thirteen Counts. Counts I through IV allege 42 U.S.C. § 1983 claims for excessive use of force against the Officer Defendants (besides Defendant Nelson). Count V brings a § 1983 excessive force claim against Defendant Nelson— who filmed the use of force incident— premised on Defendant Nelson's failure to intervene. Counts VI through IX assert § 1983 claims against the Nurse Defendants for their deliberate indifference to Mr. Howard's serious medical needs. Count X alleges a municipal liability claim against Orange County, Florida, for delegating final policymaking authority to the Nurse Defendants. Counts XI through XIII aver wrongful death claims against Orange County premised on (XI) battery, (XII) negligent hiring and retention, and (XIII) negligence.
Then, all Defendants moved to dismiss. (Docs. 23, 41, 44). The Court dismissed the individual claims asserted by Heidi Haye, Sonya Smith, and William Howard, Jr., but otherwise denied the motions. (Doc. 60). All Defendants again seek to prevail on Plaintiff's claims, this time by summary judgment motions.
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A factual dispute is "genuine" only if "a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty
The moving party bears the initial burden of identifying those portions of the record demonstrating the absence of a genuine factual dispute. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004). If the movant shows there is insufficient evidence to support the non-moving party's case, the burden then shifts to the non-moving party to demonstrate there are, in fact, genuine factual disputes which preclude judgment as a matter of law. Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir. 2006). Also, "[t]he court need consider only the cited materials" when resolving a motion for summary judgment. Fed. R. Civ. P. 56(c)(3); see also HRCC, LTD v. Hard Rock Café Int'l (USA), Inc., 703 F. App'x 814, 816-17 (11th Cir. 2017) (per curiam).
A court must view the evidence and all reasonable inferences drawn from the evidence in the light most favorable to the nonmovant, Battle v. Bd. of Regents, 468 F.3d 755, 759 (11th Cir. 2006), so "when conflict arises between the facts evidenced by the parties, [the] court credit[s] the nonmoving party's version," Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir. 2005). However, "[the] court need not permit a case to go to a jury ...when the inferences that are drawn from the evidence, and upon which the nonmovant relies, are `implausible.'" Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 743 (11th Cir. 1996).
Defendant Officers Wilkinson, LeBlanc, Wilson, Nelson, and Padilla jointly move for summary judgment based on qualified immunity. (Doc. 79). The motion begins on a conciliatory note, stating that it is brought "cautiously" in light of the Court's "strong language" in the earlier Order denying motions to dismiss. (Id. at p. 2). But this assurance turned out to be little more than a fig leaf, as the Court discovered upon reviewing the evidence and Defendants' motion, which is due to be denied.
Officer Defendants Wilkinson, LeBlanc, Wilson, and Padilla
To receive qualified immunity, a government official "must first prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred." Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal quotation marks omitted). Plaintiff does not dispute this requirement, which is clearly met. "Once the defendant establishes that he was acting within his discretionary authority, the burden shifts to the plaintiff to show that qualified immunity is not appropriate." Lee, 284 F.3d at 1194. To do so, the plaintiff must make a two-part showing. First, the plaintiff must present facts that make out a constitutional violation. Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); Beshers v. Harrison, 495 F.3d 1260, 1265 (11th Cir. 2007). Second, the plaintiff must prove that the constitutional right was "clearly established" at the time of the alleged misconduct. Pearson, 555 U.S. at 232, 129 S.Ct. 808.
To establish a viable excessive force claim in the pretrial detainee context, a plaintiff must demonstrate that the use of force was "objectively unreasonable." Kingsley v. Hendrickson, ___ U.S. ___, 135 S.Ct. 2466, 2473, 192 L.Ed.2d 416 (2015). "[O]bjective reasonableness turns on the `facts and circumstances of each particular case.'" Id. (quoting Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). The Court must view the facts "from the perspective of a reasonable officer on the scene, including what the officer knew at the time, not with the 20/20 vision of hindsight." Id. The Court must also credit the government's need to manage the facility where an individual is detained and defer to policies and practices that jail officers believe are needed to preserve order, discipline, and security. Id.
Additional factors affecting the reasonableness of force used include:
Id. A plaintiff can establish an excessive force claim by providing evidence that the challenged government conduct "is not rationally related to a legitimate government objective or that it is excessive in relation to that purpose." Id. at 2473-74.
In conducting this fact-specific inquiry, the Court views the facts in the light depicted by the video evidence and, where videos do not capture the facts in question, in the light most favorable to Plaintiff. Application of the Kingsley factors leads to the obvious conclusion that the Officer Defendants' use of force was unconstitutional.
The first factor emphatically favors Plaintiff. The Court cannot perceive even a rational need for force. Mr. Howard was isolated in a padded cell, "so the only possible threat [he] posed was to [himself]."
Whether the need for force was nonexistent or, in Defendants' best case, moderate, the amount of force used grossly exceeded this need. Officers pepper sprayed Mr. Howard, rushed him with over nine-hundred pounds of muscled Officers, and pinned him against the wall momentarily before turning and slamming him head first into the ground, breaking his neck. The Officers then propped him up and, after Mr. Howard "refused" to walk, each grabbed an extremity and carried Mr. Howard, body limp and head dangling, to his new cell. There he was stripped naked and left on a concrete floor the rest of the night. All the while, Mr. Howard coughed, wheezed, and moaned in pain, stating at one point: "I'm dead. I'm dead." Thus, the first factor favors Plaintiff.
The second factor, the extent of the plaintiff's injury, likewise strongly supports Plaintiff. Defendants correctly concede this factor, but "believe this should be tempered due to the freak accident nature of the injury." (Doc. 79, p. 13). Nonsense. Three large corrections officers slammed a seventy-five-year-old man head first into hard ground. There is nothing "freak accident" about the injury. Rather, Mr. Howard's injury was the natural consequence of a grotesquely ill-conceived maneuver—it was as foreseeable as nightfall.
The third factor, officers' attempts to limit force, is mixed though it, too, favors Plaintiff. The Officers spent substantial time and energy trying to handcuff Mr. Howard at the door for a voluntary move, an effort also attempted by day-shift staff. Efforts at restraint, however, were quickly abandoned after Officers entered the cell and failed to immediately handcuff Mr. Howard. The penultimate head-first slam into the ground was anything but restrained.
The fourth factor, the severity of the security problem, weighs heavily for Plaintiff. Indeed, there was no security problem. There was purportedly a facilities management problem, which Defendants do not contend affected security. The Officer Defendants' hypothetical problem that may have arisen "if a new [suicidal] inmate was admitted"
The fifth factor, Mr. Howard's perceived threat, likewise completely favors Plaintiff. Before he was moved, Plaintiff was isolated and could only threaten himself. He was also seventy-five-years old and would pose at most a minimal threat to the four younger, larger, and stronger Officers that moved him. In their motion, Defendants point to Officer Padilla's deposition testimony that "a partial handcuffing can turn the handcuffs into a weapon." (Id.). Which is to say, corrections officers may create a threat by arming a person with unsecured
The sixth factor, whether the detainee was actively resisting, is mixed. The Officers assert, "Mr. Howard `actively resisted by tensing his muscles and attempting to pull away from our group,'" thus this factor favors the Officers. (Id.).
In light of these factors, and viewing the evidence in Plaintiff's favor, Plaintiff has established a Fourteenth Amendment violation. In sum, the Officers' conduct in pepper spraying an elderly detainee in an isolation cell, grabbing and slamming him head first into the ground breaking his neck, and then carrying his limp body, neck unsupported, to a new cell was "not rationally related to a legitimate government objective [and] ... excessive in relation to th[e proffered] purpose." See Kingsley, 135 S.Ct. at 2473. This conclusion applies equally to the four Officers who jointly executed the use of force. Officer Padilla's responsibility stems from the directions he gave other Officers leading to and during the events, besides his participation in carrying Mr. Howard to the new cell. Officers Wilkinson's, LeBlanc's, and Wilson's respective responsibility derives from their actions executing the relocation.
The conclusion that the Officer Defendants' (excluding Officer Nelson) actions constitute excessive force is supported by a growing body of caselaw applying Kingsley. In Shuford, the Eleventh Circuit found that corrections officers used excessive force when they forcefully restrained compliant pretrial detainees, resulting in substantial injuries. 666 F. App'x at 816. A few facts guiding that court bear repeating here. For one, the "plaintiffs were in isolation holding cells so the only possible threat they posed was to themselves." Id. Also, the officers "used techniques that resulted in audible responses of pain from the plaintiffs." Id. To be sure, the facts in Shuford differed somewhat, but in both cases the force used by officers was vastly disproportionate to the need.
Robinson v. Lambert, 753 F. App'x 777 (11th Cir. 2018), lends additional support. There, a pretrial-detainee plaintiff refused repeated commands to attend a court hearing, prompting corrections officers to use force to compel his attendance. Id. at 778. Officers grabbed the plaintiff and slammed him against the wall, pinning him there for thirty to forty-five seconds before pushing him onto a desk and shoving him with enough force to break his arm. Id. at 779. On appeal, the Eleventh Circuit found that the unnecessary arm-breaking force used after officers had control over the plaintiff was objectively unreasonable. Id. at 780-81. Like the officers in Lambert, Defendant Officers grabbed a non-compliant
Next, Plaintiff must show that the constitutional right violated was "clearly established" at the time of the incident. Harlow, 457 U.S. at 818, 102 S.Ct. 2727; Lee, 284 F.3d at 1194. "In this circuit, the law can be `clearly established' for qualified immunity purposes only by decisions of the U.S. Supreme Court, Eleventh Circuit Court of Appeals, or the highest court of the state where the case arose." Jenkins by Hall v. Talladega City Bd. of Educ., 115 F.3d 821, 826 n.4 (11th Cir. 1997). In assessing whether 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, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled on other grounds by Pearson, 555 U.S. 223, 129 S.Ct. 808.
"A right may be clearly established for qualified immunity purposes in one of three ways: (1) case law with indistinguishable facts clearly establishing the constitutional right; (2) a broad statement of principle within the Constitution, statute, or case law that clearly establishes a constitutional right; or (3) conduct so egregious that a constitutional right was clearly violated, even in the total absence of case law." Lewis v. City of West Palm Beach, Fla., 561 F.3d 1288, 1291-92 (11th Cir. 2009). Here, neither party identifies factually indistinguishable case law, thus the question for the Court is whether Defendants' conduct violated Mr. Howard's constitutional rights "as a matter of obvious clarity." See Robinson, 753 F. App'x at 782.
"It is well established in [Eleventh Circuit] case law that an officer cannot continue to use force after there is no longer a need for it." Robinson, 753 F. App'x at 782 (citing Williams v. Burton, 943 F.2d 1572, 1576 (11th Cir. 1991)). Concomitantly, where a detainee stops resisting—"whether because he has decided to become compliant, he has been subdued, or he is otherwise incapacitated"—additional uses of substantial force against him are unconstitutional. Danley v. Allen, 540 F.3d 1298, 1309 (11th Cir. 2008), overruled on other grounds by Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010); see also Slicker v. Jackson, 215 F.3d 1225, 1233 (11th Cir. 2000) (affirming denial of police officers' qualified immunity where officers handcuffed the plaintiff and slammed his head into pavement and kicked his ribs).
The conduct of Officers Wilkinson, Wilson, LeBlanc, and Padilla violated clearly established law. Those Officers both secured Mr. Howard's compliance and incapacitated him by, first blinding him with pepper spray,
Defendants' arguments on clearly established law fail to move the needle. Notably, they go to great lengths to distinguish factually dissimilar cases, and don't bother to discuss whether their conduct violates general constitutional principles. (Doc. 79, pp. 9-12). Such attempts to distinguish damning case law and disarm by ignoring unfavorable precedent are unavailing.
Next, the Officer Defendants' motion argues that Officer Nelson, who filmed the events with a handheld camera, is entitled to qualified immunity on the failure-to-intervene claim brought against him. (Doc. 79, pp. 16-18).
"[A]n officer who is present at the scene and who fails to take reasonable steps to protect the victim of another officer's use of excessive force, can be held liable for his nonfeasance." Fundiller v. Cooper City, 777 F.2d 1436, 1442 (11th Cir. 1985). "But it must also be true that the non-intervening officer was in a position to intervene yet failed to do so." Hadley v. Gutierrez, 526 F.3d 1324, 1331 (11th Cir. 2008) (finding that officer who witnessed fellow officer punch the plaintiff gratuitously was entitled qualified immunity where there was no evidence the onlooker officer "could have anticipated and then stopped" the punch).
Plaintiff has introduced sufficient evidence to support a reasonable jury finding that Officer Nelson's failure to intervene violated Mr. Howard's clearly established rights. Because Officer Nelson filmed the entire incident, including the moments before Officers entered Mr. Howard's cell, he "was in a position to intervene" on multiple occasions
Though the use of force began and ended within "mere moments"
Plaintiff brings 42 U.S.C. § 1983 claims against the Nurse Defendants based on a deliberate indifference theory. (Doc. 1). Each Nurse Defendant separately moves for summary judgment based on qualified immunity. (Docs. 80-83).
Deliberate indifference to a pretrial detainee's serious medical needs constitutes a Fourteenth Amendment violation. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cty., 402 F.3d 1092, 1115 (11th Cir. 2005). To prevail on a deliberate-indifference claim, Plaintiff must show: "(1) [Mr. Howard had] a serious medical need; (2) the [Nurse Defendant's] deliberate indifference to that need; and (3) causation between that indifference and [Mr. Howard's] injury." See Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1306-07 (11th Cir. 2009).
On the first prong, 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. (quoting Hill v. Dekalb Reg'l Youth Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994)). Alternatively, a medical need is serious where the delay in treatment "worsens the condition." Id. "In either case, `the medical need must be one that, if left unattended, poses a substantial risk of serious harm.'" Id. (quoting Farrow v. West, 320 F.3d 1235, 1243 (11th Cir. 2003)).
Inadvertent failures to furnish necessary medical treatment fall short of generating constitutional claims. The second prong therefore requires Plaintiff to establish: "(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; and (3) conduct that is more than mere negligence." Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir. 2004). Not that a defendant must know the precise nature of a detainee's injuries and ignore them to expose him or herself to liability. M.D. by Stukenberg v. Abbott, 907 F.3d 237, 252 (5th Cir. 2018) (concluding that courts do not require state officials to be warned of a "specific danger" to be held liable for deliberate indifference to a serious medical need). "Liability can attach even if a prison official knows only that, if no action is taken, the detainee faces a `substantial risk of serious harm.'" Taylor v. Hughes, 920 F.3d 729, 734 (11th Cir. 2019).
A jail official "disregards a serious risk by more than mere negligence `when he [or she] knows that an inmate is in serious need of medical care, but he [or she] fails or refuses to obtain medical treatment for the inmate.'" Dang ex rel. Dang v. Sheriff, Seminole Cty. Fla., 871 F.3d 1272, 1280 (11th Cir. 2017) (quoting Lancaster v. Monroe Cty., 116 F.3d 1419, 1425 (11th Cir. 1997)). A "delay in medical
A deliberate indifference claim may be predicated on "a showing of grossly inadequate care [or] a decision to take an easier but less efficacious course of treatment." McElligott v. Foley, 182 F.3d 1248, 1255 (11th Cir. 1999). Likewise, "medical care which is so cursory as to amount to no treatment at all may amount to deliberate indifference." Dang, 871 F.3d at 1280 (quoting Mandel v. Doe, 888 F.2d 783, 789 (11th Cir. 1989)).
Viewing the evidence in the light most favorable to Plaintiff, none of the Nurse Defendants are entitled to summary judgment. The Court finds that the Nurse Defendants violated Mr. Howard's clearly established constitutional rights based on their deliberate indifference to his serious medical need.
On the first prong, the objectively serious medical need element, Plaintiff easily met this burden by showing that Mr. Howard died from "hypoxic encephalopathy due to a neck fracture with cervical spinal cord trauma, which was due to blunt force." See, e.g., Brown v. Hughes, 894 F.2d 1533, 1538 (11th Cir.1990) (painful broken foot can be serious medical need); (Doc. 99-6, p. 4). That Mr. Howard's injuries constitute an objectively serious medical need is beyond reasonable debate.
On the second prong, the subjective component, a reasonable jury could likewise find that each Nurse Defendant, having conducted an assessment of some sort on Mr. Howard post-use of force, had subjective knowledge of a risk of serious harm and disregarded that risk by conduct that is more than mere negligence. See Brown, 387 F.3d 1344, 1351.
As to Nurses Martin and Mendoza, both were called to evaluate Mr. Howard immediately after the use of force, were told he was taken down, and observed him lying naked on the concrete floor, struggling to move his arms and not moving his legs.
The Court reaches the same conclusion as to Nurse Gray—she disregarded a known serious risk of harm by conduct exceeding mere negligence. Nurse Gray knew about the use of force, observed Mr. Howard naked on his cell floor, learned that he could not sit up unassisted, and failed to meaningfully act on his complaints of neck and back pain. She saw that Mr. Howard needed to be physically lifted into his cot and handed his lunch because he couldn't reach a sandwich three feet away. Drawing all reasonable conclusions in Plaintiff's favor, there is ample evidence to support a reasonable jury finding that Nurse Gray had subjective knowledge of the substantial risk of serious harm to Mr. Howard and effectively disregarded that risk by providing cursory treatment. See Farmer, 511 U.S. at 842, 114 S.Ct. 1970; Dang, 871 F.3d at 1280; supra note 28.
The question of Nurse Distin's possible culpability is the closest. She, too, observed Mr. Howard on November 19 and learned that he could not sit up or move his legs. Armed with this information, she administered eye drops and decided not to inquire further or declare a medical emergency, and instead merely reported the complaint to Nurse Martin. Hours later, Nurse Distin found Mr. Howard unresponsive, and he died soon after. In the Court's view, a patient's complaints that he or she cannot sit up or move his or her legs evinces a need "that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." See Hill, 40 F.3d at 1187. Nurse Distin was subjectively aware of this need because Mr. Howard reported it to her, and, accepting Plaintiff's version of the facts, she essentially ignored it and failed to even report his symptoms to emergency responders. These facts are enough for a jury to conclude that Nurse Distin disregarded a known risk of serious harm by conduct exceeding mere negligence. See Farmer, 511 U.S. at 842, 114 S.Ct. 1970; Dang, 871 F.3d at 1280; supra note 28.
The right violated by each Nurse Defendant was clearly established, as "a reasonable person would have known" that delaying treatment of a seriously injured neck "would detrimentally exacerbate the medical problem." See Valderrama v. Rousseau, 780 F.3d 1108, 1121 (11th Cir. 2015) ("[I]t is `clearly established...that an official acts with deliberate indifference when he intentionally delays providing ...access to medical treatment, knowing that the [detainee] has a life-threatening condition or an urgent medical condition that would be exacerbated by delay."); Harper v. Lawrence Cty., 592 F.3d 1227, 1235 (11th Cir. 2010).
In sum, each nurse that interacted with Mr. Howard learned that he could not move his legs and was experiencing neck and back pain. Some saw him naked on the ground, writhing in pain with his still-functioning arms; others viewed him while standing next to his cot (from which he did not rise once being placed there) and heard his complaints. Yet not one of them made a meaningful effort to examine the source of his pain—his broken neck—with a potentially life-saving x-ray or even manual manipulation. Instead, he received superficial treatment and eventually died
Finally, in a separately filed motion, the County moves for summary judgment as to Counts X and XII. (Doc. 77).
Count X brings a Monell claim against the County pursuant to 42 U.S.C. § 1983. (Doc. 1, ¶¶ 97-100). Plaintiff maintains that liability should be imposed on the County because it "delegated final decision-making authority to [Nurse] Martin for performing post-use of force assessments." (Doc. 97, p. 11). In support, Plaintiff emphasizes that: (i) Nurse Martin had no oversight in making medical decisions at night because his supervisors did not work nights (Doc. 99-3, 96:5-16); (ii) County regulations conferred on Nurse Martin complete discretion in conducting post-use of force evaluations and did not provide training on performing same or documenting results (Id. 10:1-11:18); (iii) Nurse Martin was not required to report post-use of force assessments to a supervisor or fill out a medical form specific to uses of force—though a special form is required when pepper spray is deployed (Doc. 78-7, 43:18-46:2).
The County argues that Nurse Martin lacked final policymaking authority, so the County may not be held liable for his actions. (Doc. 102, pp. 3-6). For its part, the County highlights that Nurse Martin is not a "medical director," that Dr. Buck retained his supervisory authority over medical staff, that County policies bound Nurse Martin to be licensed and provide satisfactory care, and that Nurse Martin was fired for violating policy. (Doc. 102, pp. 3-6).
A plaintiff may recover against a municipality under § 1983 if "action pursuant to official municipal policy of some nature caused a constitutional tort." Monell v. N.Y.C. Dep't of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Conversely, a municipality is never liable under the doctrine of respondeat superior. Id. A municipal official's decisions constitute "official municipal policy" where the official in question is "responsible for establishing final government policy respecting such activity." Pembaur v. City of Cincinnati, 475 U.S. 469, 482-83, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986); Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1292 (11th Cir. 2004). "[W]hether a particular official has `final policymaking authority' is a question of state law." City of St. Louis v. Praprotnik, 485 U.S. 112, 123, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988). In making this determination, courts are to consider not only statutes and caselaw, but also "relevant customs and practices having the force of law." Mandel v. Doe, 888 F.2d 783, 794 (11th Cir. 1989).
An official is not a final policymaker where his or her decisions are subject to "meaningful administrative review." Scala v. City of Winter Park, 116 F.3d 1396, 1401 (11th Cir. 1997). However, a plaintiff may prevail against a municipality that delegates final policymaking authority to an otherwise non-final policymaker. "[T]he mere delegation of authority to a subordinate to exercise discretion is not sufficient to give the subordinate policymaking authority. Rather, the delegation must be such that the subordinate's discretionary decisions are not constrained by official policies and are not subject to review." Mandel, 888 F.2d at 792.
In Mandel, the Eleventh Circuit found that a county government delegated final policymaking authority to a physician's assistant
Id.
Since Mandel, courts have found that medical officials with vast authority and discretion in administering care at penal institutions are final policymakers under a delegation theory. For instance, in Kimbrough v. City of Cocoa, No. 6:05-cv-471-Orl-31KRS, 2006 WL 2860926 (M.D. Fla. Oct. 4, 2006), the court found:
Id. at *5.
Here, viewing the evidence in the light most favorable to Plaintiff and drawing all reasonable inferences in its favor, the Court finds that the County delegated final policymaking authority to Nurse Martin with respect to medical decisions relating to uses of force at the Jail. The County's policies did not constrain Nurse Martin, as they merely required "an assessment" and some sort of documentation following uses of force. See Mandel, 888 F.2d at 792; (Doc. 99-3, 10:3-25, 11:12-18). Although Nurse Martin formally had supervisors, a custom developed such that his medical decisions were not subject to meaningful administrative review. See Mandel, 888 F.2d at 794; Kimbrough, 2006 WL 2860926, at *5. There is no evidence Nurse Martin needed approval for treatment decisions after uses of force, nor is there evidence of oversight for decisions to order or not order additional procedures. See Kimbrough, 2006 WL 2860926, at *5.
The Court rejects the County's contrary arguments. Dr. Buck's declaration that he "was responsible for the review of medical care administered to the inmates" at the Jail (Doc. 78-21, ¶ 6) is contradicted by myriad deposition testimony and numerous instances of unsupervised medical treatment. The County's argument that "established policies and procedures" constrained nurses' discretion (Doc. 77, p. 18) is belied by the vague and standard-less policies that applied to nurses treating inmates after uses of force at the time of the incident. The County strains, imploring that while nurses have discretion, they "are obligated to stabilize obvious injuries and act in an emergency." (Id. at p. 20). The County, and many officials who testified, pay this "obligation" lip service; the evidence shows twenty-four hours of corrections and medical officers utterly ignoring "obvious injuries and [failing to] act in an emergency." (See id.). Finally, the fact that Nurse Martin was terminated after Mr. Howard's death has little bearing on the question of whether his decisions were subject to meaningful review before it. (See Doc. 203, p. 6).
Count XII avers a claim against the County for negligently hiring and retaining Officer Padilla. (Doc. 1, ¶¶ 106-14). Plaintiff cites four "complaints regarding violence and other misconduct" between 2010 and 2014 to support this claim. (Doc. 97, pp. 3-4).
"Negligent retention occurs when, during the course of employment, the employer becomes aware or should have become aware of problems with an employee that indicate his unfitness, and the employer fails to take further action such as investigation, discharge, or reassignment." Shehada v. Tavss, 965 F.Supp.2d 1358, 1378 (S.D. Fla. 2013). "Only when an employer has somehow been responsible for bringing a third person
Plaintiff has failed to introduce sufficient evidence to survive summary judgment on this claim. First, the two "violent actions" that occurred at the jail were both investigated; the first lead to a reprimand and the second was unsubstantiated. These exercises of supervision and punishment contradict Plaintiff's contention that the County "fail[ed] to take further action such as investigation[.]" See Shehada, 965 F.Supp.2d at 1378. Furthermore, there is no evidence that the County was aware, or should have become aware, of the domestic violence injunction. See id. Finally, the remaining supposed violent action was an arrest based on aggravated assault investigations, which apparently did not lead to a conviction. These proffered incidents are insufficient to convey actual or constructive notice to the County that Officer Padilla "is predisposed to committing a [violent] wrong," triggering a duty to act to protect detainees. See Garcia, 492 So.2d at 438. Thus, the County is entitled to summary judgment as to Count XII.
Defendants also move for summary judgment on Plaintiff Carolyn Howard's individual capacity claim. (Doc. 79, pp. 3-4). On April 2, 2018, the Court granted in part Defendants' dismissal motion and dismissed the individual capacity claims brought by Mr. Howard's children, but did not address Mrs. Howard's individual capacity claim. (Doc. 60, pp. 10-11). Defendants are correct in this instance, and Mrs. Howard's individual capacity claims are therefore due to be dismissed.
Accordingly, it is
The Officers using force were substantially larger than Mr. Howard. Mr. Howard weighed 187 pounds at the time. (OCCHS 09631). Officer LeBlanc was 6'1" tall and weighed about 200 pounds. (Doc. 78-5, 53:18-22). Officer Wilkinson was 5'8" tall and weighed about 245 pounds. (Doc. 78-16, 28:24-29:3). Officer Wilson was 5'8" tall and weighed about 230 pounds. (Doc. 78-17, 34: 24-35:3). Officer Padilla was 5'9" and weighed about 240 pounds. (Doc. 78-13, 79:6-10).
