327 F.3d 1186 (11th Cir. 2003), 01-13794, Lumley v. City of Dade City, Fla.

Docket Nº:01-13794, 01-16126.
Citation:327 F.3d 1186
Party Name:John Wayne LUMLEY, Plaintiff-Counter Defendant-Appellee, v. CITY OF DADE CITY, FLORIDA, a municipal corporation, et al., Defendants, Michael Wilkes, Lieutenant for the Dade City Police Department, in his individual capacity, Linda Leggett Register, Sergeant for Dade City Police Department, in her individual capacity, et al., Defendants-Appellants,
Case Date:April 10, 2003
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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327 F.3d 1186 (11th Cir. 2003)

John Wayne LUMLEY, Plaintiff-Counter Defendant-Appellee,


CITY OF DADE CITY, FLORIDA, a municipal corporation, et al., Defendants,

Michael Wilkes, Lieutenant for the Dade City Police Department, in his individual capacity, Linda Leggett Register, Sergeant for Dade City Police Department, in her individual capacity, et al., Defendants-Appellants,

Ray White, Detective for Dade City Police Department, in his individual capacity, Defendant-Counter-Claimant-Appellant.

John Wayne Lumley, Plaintiff-Appellant,


City of Dade City, Florida, A Municipal Corporation, Pasco County, Florida, A Municipal Corporation, Lee Cannon, Sheriff for Pasco County, in his individual and official capacity, Phillip Thompson, Chief of Police for Dade City Police Department, in his individual and official capacity, Michael Wilkes, Lieutenant for the Dade City Police Department, in his individual capacity, et al., Defendants-Appellees.

Nos. 01-13794, 01-16126.

United States Court of Appeals, Eleventh Circuit

April 10, 2003

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Jeffrey S. Weiss, Scott D. Danahy, Brown, Ward, Salzman & Weiss, P.A., Michael J. Roper, Bell, Leeper & Roper, P.A., Jack E. Holt, III, Grower, Ketcham, More, Rutherford, Noecker, Bronson, Siboni & Eide, Orlando, FL, Kathleen A.M. Krak, Donald Andrew DeBevoise, DeBevoise & Poulton, P.A., Winter Park, FL, Daniel M. Soloway, Daniel M. Soloway, P.A., Pensacola, FL, Barbara L. Wilhite, New Port Richey, FL, for Wilkes, Register, Ray White, Cannon, Fairbanks, Cooper, Savino, City of Dade City, Florida and Bob White.

Matthew P. Farmer, Farmer & Fitzgerald, P.A., James A. Wardell, Suaez & Wardell, P.A., Tampa, FL, for Lumley.

Appeals from the United States District Court for the Middle District of Florida.

Before TJOFLAT, WILSON and COWEN, [*] Circuit Judges.

TJOFLAT, Circuit Judge:

In this civil rights action, brought under 42 U.S.C. § 1983, the plaintiff seeks money damages for the manner in which he was treated by law enforcement officers when they arrested him for attempted murder, armed robbery, and carjacking, and hospitalized him for the injuries he sustained while committing these crimes. The district court, on summary judgment, rejected the officers' defense of qualified immunity on the ground that their treatment of the plaintiff violated clearly established constitutional standards. 1 The officers now appeal. Concluding that the officers did not violate the plaintiffs' constitutional rights, we reverse, and direct the district court to grant them judgment.

I. 2

On January 3, 1995, John Wayne Lumley, the plaintiff, entered a Winn Dixie store in Dade City, Florida, and shot a Wells Fargo guard from point blank range. 3 Lumley seized the bag of money in the guard's possession, fled the store, and ran across the parking lot, exchanging gunfire with another Wells Fargo guard. Lumley eyed a woman getting into a pick up truck, pointed his gun at her and ordered her to give him the keys; she complied without resistance. As Lumley attempted to drive away in her truck, the Wells Fargo guard who had been shot inside the store emerged from the store, and fired his revolver at the truck. A bullet went through the windshield and struck Lumley, entering the left side of his face and lodging in his right jaw. Undeterred, Lumley proceeded to ram the Wells Fargo armored truck, which was blocking his exit, and escape.

The Dade City Police Department investigated the crime, suspected that Lumley was the culprit, and obtained a warrant for

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his arrest. On January 10, 1995, the Sheriff of Appling County, Georgia received a tip that Lumley was staying at the home of his nephew in Baxley, Georgia, and, a short time later, Lumley was apprehended. Because Lumley appeared to be seriously injured--he still had the bullet in his jaw--the arresting officers took him to a local hospital. The emergency room physician gave Lumley medicine to alleviate his pain and to stem the infections developing in his wounds. The doctor informed the officers that he was not competent to determine what should be done about the bullet in Lumley's jaw, and that a qualified physician was not readily available. Because Lumley's medical condition appeared to have been stabilized, the officers took him to the Appling County Jail to await extradition to Florida.

On learning of Lumley's apprehension, Lieutenant Michael Wilkes and Detective Ray White of the Dade City Police Department traveled to Georgia to interview Lumley. 4 They arrived at the Appling County Jail on January 11, at 10:00 a.m. After Wilkes read him his Miranda rights, Lumley asked to see a lawyer. Wilkes and White did not grant the request, but promptly left the jail. At 3:00 p.m. the same day, two Pasco County Sheriff's deputies arrived. Lumley waived extradition, and the deputies transported him to Florida, arriving in Pasco County around 8:00 p.m. Instead of taking him to the Pasco County Detention Center, however, the deputies--knowing that Lumley could not be accepted into the detention facility with gunshot wounds to the head 5--delivered him to the East Pasco Medical Center (EPMC) for evaluation. The Sheriff's office contacted the EPMC prior to their arrival to advise it of Lumley's condition and request that a physician qualified to treat Lumley's wounds be on standby. Lumley was admitted to the EPMC at 8:42 p.m.

The Pasco County Sheriff's office regarded Lumley as "extremely dangerous." Twice he had been convicted of armed robbery, 6 and twice he had escaped from prison. 7 In addition, the Sheriff's office believed that Lumley had some accomplices who might try to effect his escape. The Sheriff's office therefore decided to restrain him while in the EPMC. Deputies strapped him to his hospital bed, guarded him round the clock, and prohibited all visitors, 8 including members of his family and lawyers from the Pasco County

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public defender's office. Deputies James Toner and Susan Anderson were the first to guard Lumley. They were replaced by twenty deputies, who worked eight-hour shifts in teams of two; the deputies included Benjamin Cooper and Joseph SaviNo.

Nurses attended to Lumley from the moment of his admission until he was seen at noon the next day, January 12, by Dr. Tew Sak, an otolaryngologist. 9 Dr. Sak examined Lumley and noted the following:

A bullet entered the left cheek, jaw and jaw line area penetrating through the hard pallet causing fracture of the right zygoma and the bullet landed lateral to the fractured zygomatic bone on the right side. Mr. Lumley was having significant pain and discomfort on moving his mouth and eyelid due to the bullet location which was in close proximity to the masseter muscle.... [Mr. Lumley] was also noted to have a fracture of the right zygomatic bone which was only minimally displaced. It was not medically indicated to treat the fracture at the time....

Dr. Sak believed that it was in Lumley's "best interest" to have the bullet removed. He told Lumley what Lumley's options were, and recommended that the bullet be removed. 10 Lumley consented to the surgery in writing. 11

The surgery took place at 11:30 the next morning, January 13, and lasted approximately thirty minutes. Before Lumley entered the operating room, Buchanon notified Wilkes that Dr. Sak was going to remove the bullet. Wilkes, in turn, asked Sergeant Linda Register to go to the EPMC and retrieve the bullet. After Dr. Sak removed it, a nurse handed it to Register. Following the surgery, Lumley was placed in a recovery room for about an hour, and then returned to his hospital room where he received post-operative care for two days. Dr. Sak and several nurses regularly checked on him, and at 2:30 p.m. on January 15, Dr. Sak authorized his release from the hospital. He was released to the custody of Pasco County Sheriff's deputies, who transported him to the Pasco County Detention Center. The following day, January 16, Lumley appeared before a judge, and a lawyer from the public defender's office was appointed to represent him.

Lumley subsequently stood trial on indictments issued by Pasco County and Middle District of Florida grand juries. A Pasco County jury convicted him on two counts of attempted first degree murder and two counts of armed robbery. A Middle District of Florida jury convicted him of carjacking, possession of ammunition by a convicted felon, and knowingly using and carrying a firearm during and in relation to a federal crime of violence. He is presently incarcerated in a federal prison.

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Lumley filed this lawsuit, seeking damages under 42 U.S.C. § 1983, 12 against the Pasco County Sheriff's Department, former sheriff Lee Cannon (who was the sheriff at the time of Lumley's arrest); current sheriff Bob White (who took office long after the events at issue); several sheriff's deputies; the City of Dade City; several officers in the Dade City Police Department; Dr. Sak; and Nurse Sandra Buchanon. As to the individual defendants, Lumley sued the current sheriff in his official capacity, the former sheriff in both his official and individual capacities, and the sheriff's deputies, the police officers, Dr. Sak, and Nurse Buchanon in their individual capacities.

Lumley's complaint, framed in four counts, is a rambling "shotgun" pleading. 13 As best we are able to discern, Lumley's claims are as follows: Count I, brought against the City of Dade City, the Pasco County Sheriff's Department, and Sheriff Bob White, alleges that sheriff's deputies and Dade City police officers named as defendants deprived him of his right to access a lawyer, in...

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