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Nelson v. Lott

United States District Court, N.D. Alabama, Northeastern Division

July 24, 2018

DOROTHY NELSON, who sues individually, and, as Administrator Ad Litem of the Estate of Randy Nelson, deceased, Plaintiff,
v.
GREGG LOTT, et al., Defendants.

          MEMORANDUM OPINION

         Randy Nelson died as a result of his encounter with two Athens, Alabama police officers in the Emergency Room of the Athens-Limestone County Hospital on February 3, 2016. The Second Amended Complaint filed by Dorothy Nelson, the mother and Administrator Ad Litem of Randy Nelson's estate, alleged eight claims against four defendants: i.e., (1) a claim under 42 U.S.C. § 1983 against Athens Police Officers Gregg Lott and Dusty Meadows for the use of excessive force in violation of the Fourth Amendment to the United States Constitution (Count I); (2) a separate § 1983 claim against Officer Dusty Meadows for failing to intervene when Officer Gregg Lott used his Taser to subdue Randy Nelson (Count II); (3) a municipal liability claim under 42 U.S.C. § 1983 against the City of Athens, Alabama ("the City"), for failing to properly train Officers Lott and Meadows (Count III); (4) a claim against the City for violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq. (Count IV); (5) a claim against the City for violation of the Rehabilitation Act, 29 U.S.C. § 794 (Count V); (6) a claim against the Huntsville Hospital Health System, doing business as the Athens-Limestone County Hospital ("the hospital"), for violation of the ADA (Count VI); (7) a claim against the hospital for violation of the Rehabilitation Act (Count VII); and (8) a claim against all defendants under Alabama Code § 6-5-410 (1975) for the wrongful death of Randy Nelson (Count VIII).[1] All claims against the City and hospital in Counts III through VIII were dismissed with prejudice on June 4, 2018, in accordance with the parties' stipulation.[2] Thus, the only claims that remain pending are those against Officers Gregg Lott and Dusty Meadows in Counts I, II, and VIII.

         The case currently is before the court on the motion of defendants Lott and Meadows to dismiss all remaining claims for failure to state claims upon which relief can be granted.[3] Following consideration of the pleadings, briefs of counsel, [4] evidentiary materials referenced in the complaint, [5] and a transcript of the audio portions of the video recording produced by the body camera attached to the uniform of Officer Dusty Meadows, [6] this court concludes that the motion should be granted.

         I. STANDARD OF REVIEW

         Federal Rule of Civil Procedure 12(b) permits a party to move to dismiss a complaint for, among other reasons, "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). That rule must be read together with Rule 8(a), which requires that "[a] pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief. . . ." Fed.R.Civ.P. 8(a)(2) (alteration and ellipses supplied). While that pleading standard does not require "detailed factual allegations," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 550 (2007), it does demand "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations omitted). The Supreme Court also observed in Iqbal that a pleading which offers only

"labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." [Twombly, 550 U.S., at 555]. Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id., at 557.
To survive a motion to dismiss [founded upon Federal Rule of Civil Procedure 12(b)(6), for failure to state a claim upon which relief can be granted], a complaint must contain sufficient factual matter, accepted as true, to "state a claim for relief that is plausible on its face." Id., at 570. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief."' Id., at 557 (brackets omitted).
Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id., at 555 (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we "are not bound to accept as true a legal conclusion couched as a factual allegation" (internal quotation marks omitted)). Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id., at 556. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. 490 F.3d, at 157-158. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not "show[n]" - "that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2).
In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Iqbal, 556 U.S. at 678-79 (emphasis and first and third alterations supplied, all other alterations in original). In addition, Federal Rule of Civil Procedure 12(d) states that:

If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.

Fed. R. Civ. P. 12(d). Thus, courts normally "do not consider anything beyond the face of the complaint and documents attached thereto when analyzing a motion to dismiss." Financial Security Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir. 2007) (emphasis supplied) (citing Brooks v. Blue Cross & Blue Shield of Florida, Inc., 116 F.3d 1364, 1368 (1 lth Cir. 1997)).

         Here, however, the parties' briefs reference two evidentiary items that are not attached to the complaint: i.e., doc. no. 25 (the video recording of the incident produced by the "bodycam" attached to Officer Meadows's uniform); and, doc. no. 50 (the February 9, 2016 Alabama Department of Forensic Sciences Report of Autopsy (hereafter, "Medical Examiner's Report")). Even though neither of those evidentiary items are attached to plaintiffs Second Amended Complaint, both are clearly referred to therein.[7] And, at least with regard to the bodycam video, the failure to actually attach a copy to the complaint appears to have been merely a clerical omission. Accordingly, the court will rely upon both the bodycam video and the autopsy report, in addition to the allegations of plaintiffs Second Amended Complaint, when determining the relevant facts.

         II. ALLEGATIONS OF THE SECOND AMENDED COMPLAINT AND EVIDENTIARY MATERIALS REFERENCED THEREIN

         Dorothy Nelson ("plaintiff) is the mother of Randy Nelson ("Nelson") and Administrator A d Litem of his estate.[8] On the date of the events leading to this action, Nelson was a large, [9] forty-nine-year-old man who "was known to suffer from chronic mental illness, having been previously diagnosed with schizophrenia and bipolar disorder, and having been approved to receive social security disability [benefits as a result of his mental conditions]."[10]

         The Second Amended Complaint alleges that plaintiff drove her son to the Athens-Limestone Hospital ("hospital") on February 3, 2016, for the purpose of receiving treatment for "anorexic with extremely poor oral intake."[11] The Medical Examiner recorded that Nelson's "behavioral problems" had begun four days earlier.[12]

This 49-year-old male was taken to the Athens-Limestone Emergency Department (ED) on February 3, 2016, at 0850 hours with behavioral problems. His mother denied the presence of a fever, cough, or other complaint. The onset of his behavioral problems was 4 days prior to his presentation at the ED. According to medical records, the patient was unable to care for himself, control himself, and had unclear thinking with associated agitation. The decedent had been nonverbal for 4 days and reportedly not taking his medication for several days. He had a history of bipolar disorder and schizophrenia. He had gone to Mental Health Center of North Alabama earlier in the day and was referred to the ED [i.e., Emergency Department] for an evaluation for psychosis. He presented as being uncooperative, in no distress andnonresponsive when checking his orientation and memory. His affect was noted to be angry, anxious, and violent.

Doc. no. 50 (Medical Examiner's Report), at ECF 3 (alteration and emphasis supplied).

         One hour and forty-one minutes after Nelson's arrival (i.e., "at 1031 hours"), he became "more agitated" and "more aggressive to the nurses" when intramuscular injections of two sedatives, Geodon and Ativan, were ordered.[13] Rather than calling for the help of mental health professionals, hospital personnel sought police assistance. Officers Lott and Meadows responded. The Medical Examiner's Report summarized ensuing events as follows:

The patient became more agitated and became violent, running into the wall at least twice. He had been warned by officers to back down or he would be tazed. He was aggressive toward an officer and was subsequently tazed. Even after this, he continued fighting and kicking at that point. An officer was finally able to get control of his arm, and the patient was given the intramuscualar drugs previously ordered in his thigh. He was then held down and arms secured; he was turned into the prone position and handcuffed, still fighting. Approximately 3-4 minutes into holding him in the prone position, he was rolled over and noted to have agonal respirations. He was placed on a monitor and found to be asystolic. Resuscitative efforts enabled the patient to regain a pulse and he was hypotensive. Dopamine, Levophed, and a fluid bolus of 2 liters were given. An electrocardiogram revealed atrial fibrillation with rapid ventricular response which was then converted to sinus rhythm. Patient was on a ventilator at this time and given some magnesium for the possibility of prolonged QT intervals.
* * * *
The patient was admitted to the Intensive Care Unit (ICU) on February 3, 2016, due to his cardiorespiratory arrest and developed overnight severe respiratory distress while on mechanical ventilation on propofol. Acute kidney injury showed significant worsening in the creatinine and a decrease in urine output. Liver damage was noted with an elevation in transaminases likely secondary to the cardiorespiratory arrest at admission. The patient was placed on pressors[14] and a broad spectrum antibiotic therapy because of the hypotension that occurred during admission. Pressors were later discontinued as patient developed persistent hypertension. He also developed fevers and rhabdomyolysis that most likely caused worsening of the renal function even with aggressive intravenous fluid. Due to hemodynamic instability and evidence of multiorgan system failure, transfer to Huntsville Hospital was done at approximately 0630 hours on February 4, 2016.
While at Huntsville Hospital, the patient continued being critically ill, not waking to verbal or painful stimuli, and continuing to be on a mechanical ventilator. He had no voluntary movements at all. The pupils were nonreactive; the corneal, cough and gag reflexes were absent. The extremities were flaccid and no reflexes were obtained. Clinically, all brainstem reflexes were absent and electrical activity and MRI findings were suggestive of brain death. He subsequently died on February 8, 2016 [i.e., five days after Nelson's initial presentment to the Emergency Department of Athens-Limestone Hospital].

Doc. no. 50 (Medical Examiner's Report), at ECF 3-4 (alteration and footnote supplied).

         The encounter between Nelson and the officers also was captured on Officer Meadows's bodycam video.[15] As the officers entered the treatment room to which Nelson had been assigned, four hospital employees were standing in the entryway, Nelson was sitting on the edge of a bed, and plaintiff was seated in a chair, facing her son.[16] An unidentified male hospital employee told the officers: "We're going to give him some Geodon and Ativan to calm him down. ... It's more than we can handle to hold him. And I just need a strong mind - I mean, a strong back and a weak mind."[17] Neither police officer asked whether the sedatives were medically necessary to treat a life-threatening medical condition.[18] The same male hospital employee said: "And this is going to go in the top of his leg. We've got two shots to give him."[19] As Nelson continued to sit on the edge of the bed, plaintiff rose from her chair and stood in the right-rear corner of the room.[20] Officer Meadows entered the room and spoke to Nelson, saying: "What's going on, man? You okay? He's going to give you some medicine to make you feel better, all right?"[21]

         The male hispital employee asked Nelson to "[c]limb back up here in the bed," and Officer Meadows instructed him to: "Just lay down. They're going to take good care of you, okay?"[22] Nelson initially began to lie face-down on the bed, but then he suddenly sat back up, on the edge of the bed.[23] For a few seconds, he alternated between lying down and sitting up. Whenever Nelson sat up, however, he swung his arms in a movement similar to a boxing punch, but with less velocity. He did not appear to attempt to strike any particular person.[24] Officer Meadows can be heard describing Nelson's movements as being like "the Matrix."[25] (His reference apparently was to the 1999 movie entitled The Matrix, which is "known for popularizing a visual effect known as 'bullet time,' in which the heightened perception of certain characters is represented by allowing the action within a shot to progress in slow-motion while the camera's viewpoint appears to move through the scene at normal speed."[26])

         Officer Meadows twice directed Nelson to "chill out."[27] Both Officers and the male hospital employee attempted to grab Nelson, but he resisted their efforts to restrain him by swinging his arms and legs in an aggressive manner. After approximately eight seconds, Officer Meadows said "Let him go," and the three men released their grasp. Nelson stood up and thrust his upper body in the direction of the Officers, lunging toward them, and swung the bottom of his hospital gown in their direction. Officer Meadows twice instructed Nelson to "relax."[28] Two female hospital employees who had been standing near the entry door exited the room.[29] Nelson continued to advance toward the door, lunging and waving his arms at the Officers in an aggressive manner, and they backed out of the room, leaving only Nelson, his mother, and the male hospital employee in the room.[30] Nelson continued to stand in the doorway and lunge toward the Officers in the hallway, making grunting noises, for approximately seven more seconds.[31] Both Officers said "stop," and his mother instructed him to "come back over here."[32] Plaintiff and the male hospital employee also exited the room at that point, and Nelson kicked at the male hospital employee on his way out the door.[33] Nelson continued to stand in the doorway, with everyone else in the hallway just outside the door, for approximately ten more seconds.[34] Plaintiff commented that her son had "never acted like that before."[35] Officer Lott then told her: "Mom, I'm going to have to tase him and I don't want to, but I'm going to have to, okay? ... There's no other way of doing this." Plaintiff responded, "Okay."[36]

         As Nelson turned and walked toward the rear of the treatment area, Officer Lott approached the door from the hallway. Nelson pushed the wheeled hospital bed toward the door, then he removed his hospital gown and threw it toward the door.[37]Officer Meadows instructed him to: "Chill out. Just relax. Relax, man. Just chill out, okay? We're trying to help you, okay? We're just trying to help you, buddy. We ain't trying to hurt you."[38] Officer Lott then entered the room with his Taser gun drawn, and Nelson picked up a vial of medicine from the counter in the back of the room and threw it at Lott. The vial appeared to hit Lott in the face.[39] Nelson advanced toward Officer Lott, leaning over the hospital bed, which was between the two men. Officer Lott backed up toward the door and instructed Nelson to "stop" and "turn around."[40]Officer Meadows continued to tell Nelson to "relax."[41] When Nelson turned around, facing the back wall of the room, Officer Lott fired his Taser. The prongs lodged in Nelson's back, [42] and he fell to the floor, face down, but then almost immediately turned back over, facing up.[43] Officers Lott and Meadows then advanced on Nelson, and one of them instructed Nelson to put his hands behind his back. Nelson did not comply, but instead waved his arms and raised his leg in the air.[44] Officer Meadows repeatedly told Nelson to turn over, but he did not do so. Instead, he continued to wave his arms, and grabbed the cord on a piece of wheeled medical equipment resembling a heart monitor and tried to fling the device at the officers.[45] Officer Lott then activated his Taser a second time, saying: "I'm going to have to keep [inaudible]."[46]

         The video does not clearly depict how many times Officer Lott cycled the Taser after Nelson fell to the floor, but the Second Amended Complaint - which must be accepted as true, except to the extent that it is directly contradicted by images recorded on the video, see Scott v. Harris, 550 U.S. 372, 380 (2007) ("When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.") - alleges that the cycling was "repeated."[47] Officer Meadows eventually was able to release Nelson's grasp on the equipment cords, and move the equipment out of the way.[48]

         The officers, with the assistance of the male hospital employee, held Nelson down and attempted for approximately forty-nine seconds to place handcuffs on him.[49]During the scuffle, a female hospital employee can he heard saying: "All right. I got his medicine in."[50] The officers and male hospital employee then were able to roll Nelson over, onto his stomach, and cuff his hands behind his back. Nelson continued to resist until he was cuffed.[51] Thereafter, the hospital employees were able to hold Nelson down without the involvement of defendants, and they pulled the Taser probes out of Nelson's back approximately thirty-five seconds after he was handcuffed.[52]

         For approximately one minute after the Taser probes were removed from Nelson's back, hospital employees (including two men and the female staffers who had returned to the room after Nelson had been subdued) discussed how to move him for further treatment. During that minute, Nelson remained on the floor, face down, with his hands cuffed behind his back, and only occasionally arched his back or attempted to lift his legs.[53] After that, he lay still for approximately a minute and twenty-five seconds until another hospital employee brought a stretcher-board into the room, for the purpose of rolling Nelson onto the board and lifting him from the floor.[54]Approximately three minutes and fourteen seconds after Nelson had been handcuffed, Officer Meadows asked whether Nelson was breathing.[55] Meadows asked again sixteen seconds later, after one of the hospital employees who had assisted in rolling Nelson onto the stretcher-board commented that he looked "kind of blue."[56] A few seconds later, Officer Meadows noted that Nelson was "taking some short breaths."[57]The remainder of the video depicts Nelson receiving emergency medical treatment from hospital personnel.

         Plaintiffs Second Amended Complaint states that Nelson had suffered respiratory and cardiac arrest; and, despite the fact that attempts at resuscitation by hospital personnel initially were successful, he died five days later, on February 8, 2016.[58] The Medical Examiner's report states that the primary cause of death was "Excited Delirium Associated With Mental Illness and Therapeutic Medications."[59] The report explained:

The circumstances surrounding the death of this individual correspond to events that typically occur in instances of excited delirium. The excited delirium syndrome involves the sudden death of a person during or following an episode of excited delirium, in which the autopsy fails to provide evidence for significant trauma or natural disease to have caused death. In virtually all cases, excited delirium is halted by a struggle with the police or medical personnel, and the use of physical restraints. Usually, within minutes following the struggle, the individual is found to be in cardiorespiratory arrest. Attempts at resuscitation are usually unsuccessful. If resuscitation is accomplished, the individual has usually undergone irreversible hypoxic encephalopathy and death occurs within days following the event.
Bipolar disorder and schizophrenia are considered risk factors for developing excited delirium. Death in excited delirium often results from a fatal cardiac arrhythmia due to a hyperadrenergic state caused by the release of catecholamines and a rapid and steep drop in blood potassium concentrations following cessation of the struggle in association with increasing levels of catecholamines. The hyperadrenergic state is almost invariably aggravated by illegal stimulants which cause increased levels of catecholamines, medications that either have the same actions as the stimulants causing the increased concentration of catecholamines and/or cause a prolongation of the QT interval. Also aggravating the circumstances of a hyperadrenergic state is the presence of natural disease of a degree insufficient in itself to cause death, but when in combination with a hyperadrenergic state can do so.
Based on the clinical circumstances surrounding the death of this individual, the best conclusion is that his death was a result of an episode of excited delirium associated with mental illness and therapeutic medications, and was complicated by hypertensive cardiovascular disease, obesity, asthma and the physical struggle. Therefore, the cause and manner of death in this case are best classified as above.

Doc. no. 50 (Medical Examiner's Report), at ECF 4-5.[60]

         III. DISCUSSION

         A. Count I: Plaintiff's excessive force claim

         Count I of plaintiff s Second Amended Complaint alleges under 42 U.S.C. § 1983 that Officers Lott and Meadows employed excessive force in violation of the Fourth Amendment when attempting to subdue Nelson at the request of hospital employees.[61] "Freedom from unreasonable searches and seizures under the Fourth Amendment 'encompasses the right to be free from excessive force during the course of a criminal apprehension.'" Mobley v. Palm Beach County Sheriff's Department, 783 F.3d 1347, 1353 (11th Cir. 2015) (per curiam) (quoting Oliver v. Fiorino, 586 F.3d 898, 905 (11th Cir. 2009)); Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002) ("The Fourth Amendment's freedom from unreasonable searches and seizures encompasses the plain right to be free from the use of excessive force in the course of an arrest.").[62]

         Officers Lott and Meadows contend that they are entitled to "qualified immunity" from suit on that claim. The qualified-immunity defense protects government officials engaged in discretionary functions and sued in their individual capacities unless they violate clearly established federal statutory or constitutional rights of which a reasonable person would have known. Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Thomas ex rel Thomas v. Roberts, 261 F.3d 1160, 1170 (11th Cir. 2001). Qualified immunity attempts to strike a balance between "the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 555 U.S. 223, 231 (2009).

         The defense allows government officials to carry out their discretionary duties without the fear of personal liability or harassing litigation, see Anderson v. Creighton, 483 U.S. 635, 638 (1987), Durruthy v. Pastor, 351 F.3d 1080, 1087 (11th Cir. 2003), thereby protecting from suit "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986); Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002).

         Thus, qualified immunity "liberates government agents from the need to constantly err on the side of caution by protecting them both from liability 'and the other burdens of litigation, including discovery."' Holmes v. Kucynda, 321 F.3d 1069, 1077 (11th Cir. 2003) (quoting Lambert v. Fulton County, 253 F.3d 588, 596 (11th Cir. 2001)). Nevertheless, the defense does not protect an official who "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff], or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury. . . ." Wood v. Strickland, 420 U.S. 308, 322 (1975) (alteration in original); see also Harlow, 457 U.S. at 815 (same); Holmes, 321 F.3d at 1077 (same). The only prerequisite for invoking the defense is for the public official to show that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred. Maddox v. Stephens, 727 F.3d 1109, 1120 (11th Cir. 2013); Lee, 284 F.3d at 1194; Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991). Plaintiff does not dispute the assertion of Officers Lott and Meadows that they "were engaged in the performance of their official duties as police officers for the City of Athens."[63] Instead, plaintiff argues only that "[n]either the Fourth Amendment nor Alabama state law permits officers to use excessive force while performing discretionary functions."[64]

         Accordingly, the burden shifts to plaintiff to show that qualified immunity is not appropriate by establishing: (1) that the defendants' conduct, viewed in the light most favorable to the plaintiff, violated a constitutional right; and (2) the constitutional right was "clearly established ... in light of the specific context of the case, [and] not as a broad general proposition," on the date that the allegedly wrongful acts occurred. Saucier v. Katz, 533 U.S. 194, 201 (2001) (ellipsis and alteration supplied).[65] A district court is granted the flexibility to decide those issues in either order, but the plaintiff must satisfy both requirements in order to negate the defendants' qualified-immunity defense. See, e.g., Pearson, 555 U.S. at 236; Maddox v. Stephens, 727'F'.3d 1109, 1120-21 (11th Cir. 2013); Loftus v. Clark-Moore, 690F.3d 1200, 1204 (11th Cir. 2012); Lewis v. City of West Palm Beach, Fla., 561 F.3d 1288, 1291 (11th Cir. 2009).

         1. The first element of the qualified immunity test

         The first inquiry in reviewing the claim alleged in Count I of plaintiffs complaint is to determine whether she has "sufficiently alleged a constitutional or statutory violation." Mann v. Tas'er International, Inc., 588F.3d 1291, 1305(11thCir. 2009). "Without a . . . violation, there can be no violation of a clearly established right." Smith v. Siegelman, 322 F.3d 1290, 1295 (11th Cir. 2003).

         Plaintiff alleges that the Fourth Amendment "does not provide police officers with a privilege to use force to compel a patient, in a hospital, to consent to the administration of sedating medication in non-emergency situations."[66] In assessing such a claim, courts must ask "whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them." Graham v. Connor, 490 U.S. 386, 397 (1989). A court must evaluate several factors, including "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 attempting to evade arrest by flight." Id. at 396. The question of whether the use of force was reasonable must ultimately be determined "from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." Id. (citing Terry v. Ohio, 392 U.S. 1, 20-22 (1968)); see also, e.g., Mann, 588 F.3d at 1306 (same).

         Those standards do not nicely fit the facts of this case, however. For example, Nelson had committed no crime before defendants were summoned to the hospital. Indeed, Officers Lott and Meadows were only told upon their arrival that Nelson was more than hospital staff could "handle" or "hold" while attempting to inject sedatives, and they needed "a strong back and a weak mind" to assist in restraining him.[67] Even so, defendants persuasively contend that Nelson reasonably could have been charged with three state offenses during the interval between their arrival in the emergency room and Officer Lott's deployment of his Taser: i.e., (I) the crime of harassment by throwing a vial of medicine at (and striking) Officer Lott;[68] (2) the crime of disorderly conduct for fighting with the officers and medical personnel who were attempting to subdue him;[69] and (3) the crime of menacing when several people (including plaintiff) left the room in fear during the incident.[70]

         Moreover, Nelson was not armed. And, even though he thrust his arms and legs at defendants and hospital employees in a pugilistic manner, his aggressive movements were not rapid, but in slow motion.[71] Nevertheless, given Nelson's large size and the physical strength revealed in the video recording of his prolonged and aggressive resistence to rational behavior, it clear that he was a danger to hospital staff and the officers.

         Ultimately, however, it is difficult to apply tests developed for determining the reasonableness of police conduct when effecting the arrest of a criminal to the entirely different context of controlling of an agitated, mentally-ill individual who is aggressively resisting medical therapy. The difficulty is apparent in the Eleventh Circuit's disposition of the issue in Bussey-Morice v. Gomez, 587 Fed.Appx. 621 (11th Cir. 2014). That case is not on "all fours" with the present one, but the facts are closely aligned. Preston Bussey, the plaintiffs decedent in Gomez, was not suspected of any crime when he entered a Florida hospital during the early morning hours of December 2, 2009, but medical staff, hospital security guards, and local police officers uniformly described him as belligerent, agitated, psychotic, and hallucinating. His actions posed an obvious threat of harm to himself and others. Like Nelson here, Bussey died after being tased by police. When evaluating the defendants' qualified immunity defense, the Eleventh Circuit chose to side-step the question of whether the police officers' use of Tasers to subdue Bussey violated the Fourth Amendment. See Id. at 627 ("Because we find that the alleged illegality of Gomez and Hewatt's behavior was not clearly established at the time of their actions, we need not decide whether a constitutional violation took place.") (citing Maddox, 727 F.3d at 1120-21, for the proposition that a plaintiff must satisfy both requirements of the qualified immunity test in order to negate the defense). Other Eleventh Circuit opinions have followed a similar course when evaluating police officers' use of Tasers to subdue mentally ill individuals who were not suspected of a crime, but whose behavior threatened their own safety, or the safety of others around them. See, e.g., Callwood v. Jones, F. App'x 552, 559 (11th Cir. 2018) (beginning with the question of whether police use of a Taser to subdue a mentally-ill man walking naked along a highway violated clearly established law, because the man had "acted erratically, ignored commands to stop, and tried to enter homes"); Hoyt v. Cooks, 672 F.3d 972, 977 (11th Cir. 2012) ("Because we find that the illegality of Cooks's and Harkleroad's behavior was not clearly established at the time, we need not decide whether there was a constitutional violation.") (citing Pearson, 555 U.S. at 236).

         In summary, even though the use of a Taser under the circumstances revealed by Officer Meadows's bodycam recording appears appropriate to protect the safety of hospital staff and defendants, as well as to compel Nelson's compliance with the administration of sedatives, it ultimately is not necessary to determine whether a constitutional violation occurred because the illegality of such conduct was not clearly established on the date of the event leading to this suit.

         2. The second element of the qualified immunity test

         The second element of the qualified immunity test requires a determination of whether the constitutional violation was "clearly established" on the date of the event leading to suit. The focus at this step of the analysis is on the question of whether the officer had "fair notice" that his conduct was unlawful. See, e.g., Hope v. Pelzer, 536 U.S. 730, 741 (2002); Salvato v. Miley, 790 F.3d 1286, 1292 (11th Cir. 2015); Williams v. Consolidated City of Jacksonville, 341 F.3d 1261, 1270 (11th Cir. 2003). Consequently, the reasonableness of the officer's conduct "is judged against the backdrop of the law at the time of the conduct." Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (per curiam). That standard does not require "[e]xact factual identity with a previously decided case[, ]... but the unlawfulness of the conduct must be apparent from pre-existing law." Coffin v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011) (en banc) (alterations supplied).

         Even though Supreme Court precedent does not require a case directly on point in order to say that the unlawfulness of particular conduct was "clearly established" on the date of the injury in question, '"existing precedent must have placed the statutory or constitutional question beyond debate.' In other words, immunity protects 'all but the plainly incompetent or those who knowingly violate the law.'" White v. Pauly, 580 U.S. __, 137 S.Ct. 548, 551 (2017) (per curiam) (quoting Mullenix v. Luna, 577 U.S. __, 136 S.Ct. 305, 308 (2015) (per curiam)). "Such specificity is especially important in the Fourth Amendment context, where the Court has recognized that' [i]t is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.'" Mullenix, 136 S.Ct. at 308 (alteration in original) (quoting Saucier, 533 U.S. at205);seealso, e.g., Kisela v. Hughes, __ U.S.__, 138 S.Ct. 1148, 1152(2018) (per curiam) (same).

Use of excessive force is an area of the law "in which the result depends very much on the facts of each case," and thus police officers are entitled to qualified immunity unless existing precedent "squarely governs" the specific facts at issue. Precedent involving similar facts can help move a case beyond the otherwise "hazy border between excessive and acceptable force" and thereby provide an officer notice that a specific use of force is unlawful.

Kissela, 138 S.Ct. at 1153 (quoting Mullenix, 136 S.Ct. at 309, 312). See also Ashcroft v. al-Kidd, 563 U.S. at 741 ("We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.").

         When combing through pre-existing caselaw, federal district courts located in Alabama are instructed to look at binding decisions of the United States Supreme Court, the Eleventh Circuit, and the Alabama Supreme Court. Wate v. Kubler, 839 F.3d 1012, 1018 (11th Cir. 2016); Hoyt, 672 F.3d at 977 (citing McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir. 2007)).

         Plaintiff argues that the Supreme Court's decision in Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990), and the Eleventh Circuit's opinion in Oliver v. Fiorino, 586 F.3d 898 (11th Cir. 2009), should have placed defendants on fair notice that their conduct violated her son's Fourth Amendment right to be free from the use of excessive force. As the discussion in the following sections will demonstrate, however, neither precedent staked out a bright line.

         a. Cruzan v. Director, Missouri Department of Health

         The Supreme Court's 1990 decision in the Cruzan case addressed the question of whether a hospital could be forced to withdraw life-sustaining treatment from a patient who languished in a persistent vegetative state with virtually no chance of regaining her mental faculties, when that patient had previously expressed a desire not to be kept alive under such circumstances. See 497 U.S. at 266-69.[72] The detailed facts and ultimate disposition of the case are not relevant here; instead, the relevant consideration is the Supreme Court's holding that "a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment." Id. at 278 (emphasis supplied).

         Plaintiff in the present case asserts on the basis of that holding that, because her son had a clearly-established constitutional right to refuse medical treatment, Officers Lott and Meadows were not justified in using any level of force to restrain him while medical personnel administered the intramuscular injections he had refused.

         Setting to one side the question of whether Nelson was competent to refuse medical treatment on the date of the events leading to this case, [73] plaintiffs argument still fails because the Cruzan decision does not clearly establish that the behavior of Officers Lott and Meadows was unlawful. A Supreme Court decision declaring a person's due process right to refuse unwanted medical treatment cannot be said to provide fair warning of a subsequent excessive force violation, because the constitutional inquiries share little common ground. The Supreme Court "has repeatedly told courts ... not to define clearly established law at a high level of generality." Kisela, 138 S.Ct. at 1152 (quoting City and County of San Francisco v. Sheehan, 575 U.S. - 135 S.Ct. 1765, 1775-76 (2015) (in turn quoting Ashcroft v. al-Kidd, 563 U.S. at 742) (quotation marks omitted, ellipsis supplied); see also Brosseau, 543 U.S. at 198-99.

         It would be questionable even to say that a case generally declaring an individual's Fourth Amendment right to not be subjected to excessive force could control with obvious clarity any subsequent case involving the exercise of force under a particular set of circumstances. That is because the legitimacy of an officer's use of force in any given situation is a complex, fact-oriented inquiry requiring a careful balancing of '"the nature and quality of the intrusion on the individual's Fourth Amendment interests' against 'the countervailing governmental interests at stake' under the facts of the particular case." Oliver, 586 F.3d at 905 (quoting Graham, 490 U.S. at 396).

         It is not surprising, then, that this court's research has revealed no case in which the Cruzan decision has been applied in the context of a Fourth Amendment excessive force claim. There are only cases, as defendants point out, suggesting that the Cruzan holding should not be applied in that context. For example, the Seventh Circuit's opinion in Estate of Allen v. City of Rockford, 349 F.3d 1015 (7th Cir. 2003), held that Cruzan did not grant a person "a constitutional right to state protection from unwanted medical treatment after a physician has determined that treatment is required and found her incompetent to make decisions about her medical treatment." Id. at 1021. According to the Seventh Circuit, "language suggesting that state actors who are not physicians must prevent unwanted medical treatment notwithstanding a doctor's determination that the person refusing treatment is incompetent" was "[conspicuously absent from the Cruzan opinion." Id. (alteration supplied).

         In Sullivan v. Bornemann, 384 F.3d 372 (7th Cir. 2004), Sullivan was arrested for disorderly conduct and produced an alarmingly high breathalyzer test result. The jail refused to admit Sullivan without medical clearance, so he was transported to a hospital. An emergency room physician ordered a urine sample, but Sullivan could not produce one voluntarily, so the physician ordered that the sample be obtained through catheterization. Sullivan did not consent to the catheterization, and he had to be physically restrained by two officers during the procedure. He later sued the officers, claiming that they violated his rights to due process and to be free from unreasonable searches and seizures. Id. at 373-75. The Seventh Circuit framed the question before it as whether "the officers' acquiescence in the nurse's request to help her restrain Sullivan during the brief catheterization procedure violatefd Sullivan's] rights under either the Fourth or Fourteenth Amendments?" Id. at 376 (alteration supplied). The Court answered that question in the negative. Addressing Sullivan's Fourth Amendment search and seizure claim, the Seventh Circuit opinion stated:

There is no rule to the effect that law enforcement officials are constitutionally prohibited from briefly restraining a detainee at the direction of qualified medical personnel, with the purpose of minimizing injury to the detainee. Under the circumstances here, which we have already recounted, the officers' actions were entirely reasonable. As the district court correctly noted in its discussion of the qualified immunity defense, a holding to the contrary would place law enforcement officers in the impossible position of having to second-guess the medical judgments of emergency room physicians. Police officers like Bornemann and Whealon should not be at risk of liability under § 1983 for medical decisions made exclusively by the emergency room physician. We conclude that the officers' actions under the circumstances presented here did not violate Sullivan's rights under the Fourth Amendment. See Florida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) (noting that the "touchstone of the Fourth Amendment is reasonableness").

Sullivan, 384 F.3d at 377 (emphasis supplied). The Seventh Circuit also found Sullivan's due process claim to be

even less compelling. He relies primarily on Cruzan v. Missouri Dept. of Health, 497 U.S. 261, 278, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990), which held that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment. But Cruzan, which dealt with the rights of a person in a persistent vegetative state, has little applicability to these facts. Moreover, the passage in Cruzan on which Sullivan relies is followed by an important qualification, in which the Court said that "determining that a person has a liberty interest under the Due Process Clause does not end the inquiry; whether respondent's constitutional rights have been violated must be determined by balancing his liberty interests against the relevant state interests." Id. at 279, 110 S.Ct. 2841. We have already noted that the state has a substantial interest in assuring the medical stability of its pretrial detainees; indeed, were it to be deliberately indifferent to their health, it could be sued under the Fourteenth Amendment. Allen, 349 F.3d at 1020. Applying the balancing process envisioned by Cruzan, we have little trouble finding that the minimal invasion of his privacy interest here is outweighed by the state's interest.

Sullivan, 384 F.3d at 377-78 (emphasis supplied).

         District courts in other jurisdictions have reached similar conclusions. See, e.g., Sauls berry v. Maricopa County, 151 F.Supp.2d 1109, 1119 (D. Ariz. 2001) ("Plaintiff has failed to provide, nor has the Court's independent legal research discovered, any case authority that holds an official liable under the Fourth Amendment for forcibly catheterizing a prisoner against his will when the sole purpose of the procedure was medicinal only."), aff'dsub nom. Saulsberry v. Arpaio, 41 Fed.Appx. 953 (9th Cir. 2002); Rubio v. City of New York, No. 03-CV-1349 (SJ) (KAM), 2005 WL 1072713, at *4 (E.D. N.Y. Apr. 22, 2005) (holding that the plaintiffs Fourth Amendment rights were not violated by officers' decision to transport him to a hospital against his will when he had been shot in the leg and was intoxicated, angry, incoherent, and combative).

         Even though the preceding decisions did not directly address Fourth Amendment excessive force claims, they strongly suggest that the Cruzan decision would not be extended to hold officers liable for excessive force after restraining a patient for unwanted medical treatment prescribed by medical personnel. Absent any more applicable authority, it would be a vast and unprecedented judicial leap to apply Cruzan in the manner suggested by plaintiff. As such, it simply cannot be said that the Cruzan decision announced a clearly established legal principle that would have placed defendants on fair notice that their conduct was unlawful.[74]

         b. Oliver v. Fiorino

         The second case cited by plaintiff is the Eleventh Circuit's decision in Oliver v. Fiorino, 586 F.3d 898 (11th Cir. 2009). Because factual precision is essential to the analysis, the entire factual summary from the Court's decision will be set out here:

Taking the facts in a light most favorable to the plaintiff, this tragic story began on May 13, 2004, at approximately 3:17 p.m. Officer Fiorino was driving her police cruiser; she said she noticed a man, who later turned out to be Anthony Carl Oliver, Sr. ("Oliver"), standing in an eight to ten-foot-wide grassy median on West Colonial Drive near Tampa Avenue in Orlando, waving his arms and attempting to flag her down. Officer Fiorino turned her police cruiser around and parked in the Eastbound turning lane, blocking the turning lane and stopping any traffic in that lane. According to one bystander, Carl Hughley, the officer pulled up and asked Oliver to approach her vehicle. He complied. Oliver then knocked on the rear driver-side window and unsuccessfully attempted to open the locked rear door of the police cruiser. Fiorino used her loud speaker to instruct Oliver to move to the front of her vehicle; again, he complied. Fiorino then directed Oliver to move further away from the vehicle, which he did. Fiorino then exited her vehicle. At this point, Oliver was standing some twenty-three feet away from Fiorino, who was near her vehicle.
Oliver did not speak before Officer Fiorino pulled out her Taser gun and asked Oliver what the problem was. Oliver responded to Fiorino's questions, saying "they're shooting at me" several times, and pointing across the street. Fiorino told Oliver to calm down and tell her what was going on. Oliver attempted to walk away; Fiorino asked him to stay and talk. According to Fiorino, Oliver then began to walk quickly toward her. In response, Fiorino raised her Taser gun and told Oliver to step away from her. Oliver complied. Fiorino observed that throughout this encounter, Oliver was "very fidgety." According to [a bystander-witness named Carl] Hughley, however, Oliver never acted in a threatening or belligerent manner toward the officers, nor did he even curse at them.
Officer Fiorino asked Oliver for details about who was shooting at him and under what circumstances. She also called her dispatch to inquire whether there had been any reported shootings in the area. Dispatch told her there had been a shooting reported eight or nine miles away, but none in her area. When Fiorino was advised there had been no shooting in the area, she requested back-up.
Shortly thereafter, Officer David Burk arrived on the scene. Burk parked his car so that it, along with Fiorino's car, boxed in the left turning lane where the incident was unfolding. When Burk arrived, Oliver was standing several feet from Fiorino in the median, speaking loudly and "moving his hands around." Fiorino and Burk testified that they considered taking Oliver into custody under Florida's Mental Health Act, Fla. Stat. § 394-463(1) ("the Baker Act"), because he appeared to them to be mentally unstable. Nonetheless, Fiorino and Burk never informed Oliver of this fact, and never attempted to either arrest Oliver or "Baker Act" Oliver at any time during the entire incident.
Officer Burk approached Oliver, who was still standing in the median, to ask him for his name and identification. Oliver complied, giving Burk his identification card. Burk then decided to coax Oliver across the Eastbound side of the street (across the blocked turning lane and the other lanes) to the sidewalk, so that they could talk when he saw there was "no traffic at all," and once the light turned red. Burk attempted to do so by putting his right hand on Oliver's left shoulder. Oliver responded by trying to back away. Oliver then "momentarily stopped" in the blocked turning lane of the street and began to babble incoherently. When the light changed and the traffic (if any) in the other lanes began to move again, Burk tried to force Oliver across the street, but Oliver struggled and pulled away from him.
During the encounter, Burk held on to Oliver's shirt as Oliver attempted to walk away across the street. At this point, Oliver did not try to grab Burk or to swing at him. Fiorino nevertheless, and without warning, tased Oliver for the first time.
Fiorino was using a Taser M26 Electronic 10 Control Device, which was "designed to cause significant, uncontrollable muscle contractions capable of incapacitating even the most focused and aggressive combatants." [Doc. 143-8 at 28]. "The [T]aser gun fires two probes up to a distance of twenty-one feet from a replaceable cartridge. These probes are connected to the [T]aser gun by high-voltage insulated wire. When the probes make contact with the target, the [T]aser gun transmits electrical pulses along the wires and into the body of the target, through up to two inches of clothing." Draper v. Reynolds, 369 F.3d 1270, 1273 n. 3 (11th Cir. 2004). The pulses are five seconds in duration, unless the trigger is held down longer than five seconds. [Doc. 142-43 at 70]. "Each 5-second cycle is a 'window of opportunity' for the arrest team to apprehend the subject and go hands on." Id. at 73.
The Taser prongs from Officer Fiorino's first tase hit Oliver in his abdomen. According to Carl Hughley, this tase brought Oliver to the ground. While the Taser cycled through its five-second shock, Burk tried neither to handcuff Oliver nor to move him. This is so, despite the fact that, according to Hughley, once Oliver was on the pavement after the first tase, he never got back up, and he never hit, kicked, punched, or threatened the officers. Three to four seconds after the first Taser cycle ended, Fiorino tased Oliver once again. Ten seconds after the end of the second cycle, she tased Oliver still again for the third time.
After Oliver was shocked by the Taser, according to [bystander-witness Carl] Hughley, Oliver was lying on the scorching hot asphalt screaming in pain that it was "too hot." Another bystander, Richandra Nelson, said that Oliver remained on the ground while Burk just stood there and watched Fiorino tase him. Both Nelson and Hughley witnessed Oliver attempting to get up from the ground, but said that they never saw him struggling with, hit, kick, punch, or threaten Burk in any manner. Hughley stated that when Oliver went down, he couldn't roll over. When he tried to sit up, he flopped down like a "wet cloth" because he had no control over his body.
After approximately the third or fourth tase, one of the Taser wires became disconnected from the Taser prong and stuck into Oliver's chest. Fiorino loaded a second cartridge into her Taser and began tasing Oliver again. This tase and the next three or four tase cycles caused Oliver to be totally immobilized, leaving him clenched up and lying on his back. After the sixth or seventh tase, Oliver was again seen lying on the hot asphalt. Officer Fiorino said that when she tased Oliver for the last time (the eighth recorded tase), he was lying flat and he did not get up.
Fiorino said she was not sure how many times she tased Oliver, but that she just kept pulling the trigger until he stayed on the ground. She said that she believed she tased Oliver approximately eleven or twelve times. Fiorino's Taser log shows that she tased Oliver a total of eight times over a two-minute period as follows: (note that each tase lasts five seconds) 1) Taseat 14:18:19(2:18:19p.m.); 2)Taseat 14:18:28(2:18:28 p.m.); 3) Tase at 14:18:43 (2:18:43 p.m.); 4) Tase at 14:19:08 (2:19:08 p.m.); 5) Tase at 14:19:21 (2:19:21 p.m.); 6) Tase at 14:19:31 (2:19:31 p.m.); 7) Tase at 14:19:38 (2:19:38 p.m.); and 8) Tase at 14:20:27 (2:20:27 p.m.).
Nelson observed that once backup arrived at 3:24 p.m., the officers finally handcuffed Oliver. Fiorino stated that after Oliver was handcuffed, he began foaming at the mouth. It appeared as if Oliver's body had gone limp, but he still screamed in pain. After Officer Burk walked Oliver back to the median, Fiorino took some of the Taser prongs out of his body, but was unable to remove them all.
At 3:35 p.m., paramedics arrived on the scene. At that point, Oliver was handcuffed and seated on the median, awake but not talking. After Oliver was placed on a stretcher, Burk noticed that Oliver had blood in his mouth. As Oliver was placed in the ambulance, he sat straight up and began to have a seizure. His health deteriorated rapidly; his body temperature was measured at 107 degrees. Oliver was pronounced dead on June 1, 2004, at Florida Hospital.
An autopsy revealed that Oliver had low levels of cocaine in his system, but Dr. Rudner, Plaintiffs expert witness and forensic pathologist opined "to a reasonable degree of medical certainty" that Oliver died as a result of "ventricular dysrhythmia in conjunction with Rhabdomyolisis" as a result of "being struck by a Taser."

Oliver, 586 F.3d at 901-04 (first and seventh alterations supplied, other alterations in original, footnotes omitted).

         The Eleventh Circuit held that the officers' actions violated Oliver's clearly established Fourth Amendment right "to be free from excessive force during the course of a criminal apprehension." Id. at 905 (citing Graham, 490 U.S. at 394-95; Mercado v. City of Orlando,407 F.3d 1152, 1156 (11th Cir. 2005)). Officer Fiorino's single, initial Taser shock of Oliver was reasonable, because Oliver at least arguably placed himself and Officer Burk in some danger when he struggled to free himself from Officer Burk in the street. Oliver, 586 F.3d at 906. But the subsequent shocks were not reasonable, considering that the first shock caused Oliver to fall to the ground, and each additional shock only caused him to become further immobilized, to lose control over his body, and to "scream[] in pain while lying ...


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