527 F.3d 1253 (11th Cir. 2008), 06-14231, Reese v. Herbert

Docket Nº:06-14231.
Citation:527 F.3d 1253
Party Name:Edward J. REESE, Plaintiff-Appellant, v. Josh HERBERT, in his individual capacity, Danny Ellis, in his individual capacity, Jason Geddie, in his individual capacity, Joe Geddie, in his individual capacity, Phillip Street, in his individual capacity, Defendants-Appellees
Case Date:May 16, 2008
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1253

527 F.3d 1253 (11th Cir. 2008)

Edward J. REESE, Plaintiff-Appellant,

v.

Josh HERBERT, in his individual capacity, Danny Ellis, in his individual capacity, Jason Geddie, in his individual capacity, Joe Geddie, in his individual capacity, Phillip Street, in his individual capacity, Defendants-Appellees

No. 06-14231.

United States Court of Appeals, Eleventh Circuit.

May 16, 2008

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Jeffrey J. Dean , Waycaster, Morris & Dean, LLP, Dalton, GA, for Reese.

Steven M. Rodham , Ronald R. Womack , The Womack Law Firm, P.C., Lafayette, LA, Tamara J. Wayland , Atlanta, GA, for Defendants-Appellees.

Appeal from the United States District Court for the Northern District of Georgia.

Before TJOFLAT , BLACK and EBEL[*] , Circuit Judges.

TJOFLAT , Circuit Judge:

In this action for damages brought under 42 U.S.C. § 1983 , Edward J. Reese alleged that officers of the Dade County, Georgia, Sheriff's Department used excessive force in arresting him, in violation of his rights under the Fourth Amendment. He also alleged that their supervisor failed adequately to train and supervise them and that he was deprived of medical treatment in violation of the Fourteenth Amendment. The district court granted the defendants summary judgment on alternative grounds: (1) no constitutional violations occurred, and (2) assuming that violations occurred, the defendants were entitled to qualified immunity from suit because the relevant case law did not clearly establish that the conduct of the defendants infringed Reese's rights under the Fourth and Fourteenth Amendments. Reese now appeals the denial of his excessive force claims. He also challenges the district court's denial of his motion for leave to amend his complaint and the court's disallowance of the affidavit of his expert witness.

I.

A.

Edward J. Reese is the owner and caretaker of an apartment complex in Trenton, Dade County, Georgia. On the evening of September 18, 2003, the Dade County Sheriff's Department dispatcher called a deputy sheriff, Joseph Geddie (“Deputy Geddie" ), to respond to a domestic violence call at Reese's apartment complex. The dispatcher informed Deputy Geddie that the parents of the woman involved in the reported violence were also on their way. Deputy Geddie arrived at the apartment complex first and was directed to the apartment occupied by Amanda Craig Higdon. She was there with her boyfriend, who claimed that she had assaulted him. Higdon was cooperative, and within five or so minutes, Deputy Geddie was able to arrest, handcuff, and place her in the back of his patrol car.1 He then returned to

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Higdon's apartment to interview the boyfriend. Joshua Herbert, another deputy sheriff, arrived soon after and entered the apartment to assist Deputy Geddie. About six minutes later, Higdon's parents, Mac Craig and his wife, arrived at the apartment and confronted Deputy Geddie about their daughter. Deputy Geddie told the Craigs to leave the building and instructed Herbert to stay outside with them to ensure that no one else entered the apartment.

Georgia State Trooper Jason Geddie (“Trooper Geddie" ) also responded to the domestic violence call as a courtesy to local law enforcement.2 When he arrived at the apartment complex, he observed Herbert standing outside the building. Trooper Geddie judged that the situation was under control and returned to his vehicle. Soon thereafter, another deputy sheriff, Danny Ellis, arrived and parked his vehicle next to Trooper Geddie's. Trooper Geddie immediately informed Ellis that everything was under control. As they were conversing, Trooper Geddie observed Reese drive into the apartment complex parking lot and park his truck on the opposite side of Ellis's patrol car. Reese sat in his truck for a few minutes and then exited his vehicle and approached Herbert.

It is at this point that the parties' accounts of what took place diverge. Because a central issue in this appeal is the proper version of the facts to be credited for purposes of our review of the summary judgment in this case, we provide a description of both Reese's and the defendants' versions. We begin with Reese's version of the facts.

According to Reese, he was working in his office across the street from the apartment complex when he noticed that four law enforcement vehicles had parked in front of the complex. Two of the vehicles were in the parking lot, and two were blocking the street in front of the complex. Reese also saw some people standing together outside the complex, whom he later learned were Herbert, the Craigs, and his wife, Carol Reese. Reese drove over to the apartment complex, sat in his vehicle for a few minutes, then walked up to Herbert, who was talking to the Craigs. Reese waited next to his wife for a few more minutes to get Herbert's attention and then asked Herbert who was in charge. According to the affidavits of Mac Craig and Carol Reese, Reese did not seem angry or agitated at the time, but Herbert “responded [to him] in a very belligerent and hateful tone" that the Dade County Sheriff's Department was in charge.

What happened next is not in dispute. Reese asked Herbert which officer was in charge, to which Herbert replied that Deputy Geddie was in charge but was occupied. Reese then inquired whether it was necessary for all of the vehicles to remain at the scene, since Higdon was in custody and the other tenants could not get to their apartments. Herbert replied that it was necessary for the vehicles to remain and told Reese to leave “or [he would] be going to jail." Reese responded that Herbert didn't understand, that Reese was the owner of the apartment complex.

At this point, according to Reese, he turned to walk toward Trooper Geddie's vehicle. As he turned, Herbert grabbed him by the left arm, threw him against the apartment building in a choke hold, and struck him. Herbert began shouting at him to stop resisting. Reese, Carol Reese, Mac Craig, and Amanda Higdon attest that Reese was not fighting back. Herbert then threw Reese to the ground,

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where Reese lay face down with his left arm behind his back and his right arm under his body. Herbert called for assistance, and the other defendants appeared en masse. Because his face was in the mulch, Reese was unable to see who subsequently did what. Mac Craig and Carol Reese observed Ellis place his knees on Reese's back, and then all four of the defendants piled on top of Reese, continued twisting his left arm behind his back, and commenced “kicking and punching him and yelling ‘stop resisting.’ " 3 At some point, Reese's left arm was handcuffed. Reese could not extract his right arm from beneath him because the defendants were on top of him. Reese repeatedly yelled that he was not resisting, that they were breaking his arm, and that they were going to cause him to have a heart attack.

Neither of the videotapes from Deputy Geddie's or Herbert's patrol cars depict Reese's physical encounter with the officers. However, the videotapes' audio reveals the following exchange between Herbert and Reese:

HERBERT: Joe! [Unintelligible] wrong with you old man? Huh? Huh?

REESE: What the hell are you doing?

HERBERT: Roll over! Stop resisting! Stop resisting!

REESE: Resisting?

MALE VOICES: Roll over! Stop resisting and roll over! Roll him over!

REESE: You make me have a heart attack, you son of a bitch, [unintelligible]-

MALE VOICE: Roll him over.

REESE: I didn't-

MALE VOICE: Hook him up. Stop resisting!

REESE: I ain't resisting!

MALE VOICE: [Unintelligible.] Give me hand!

REESE: I ain't resisting!

MALE VOICE: Gimme your hand!

REESE: You broke my arm, you rotten son of a bitch!

MALE VOICE: Gimme your hand!

REESE: You guys are [unintelligible]-

MALE VOICES: Roll it over. Roll it over.

REESE: Stop [unintelligible]. You make me have a heart attack-

MALE VOICES: Roll it over. [Unintelligible.] Stop resisting!

REESE: I'm not resisting! You're breaking my arm! I'm not resisting! I'm not resisting!

MALE VOICES: Yes you are. Let this arm back. Let this arm come back. There you go.

REESE: I'm not resisting! You broke my arm! You broke my left arm! [Unintelligible.] My left arm, you broke it ....4

Deputy Geddie then lifted Reese's head up by the hair and sprayed Reese in the face with pepper spray at very close range. Reese's right arm was then handcuffed as well. Reese can subsequently be heard protesting on the Herbert videotape: “I didn't have no fight. He jumped on me, I never said a word." The videotape audio

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reveals that a short time later, Mac Craig complained to Deputy Geddie about Herbert's behavior, explaining that “[Reese] just said I don't see where you need all these patrol cars on my property, and that-knocked the shit out of him, for no reason."

The defendants' version is markedly different. Herbert claims that he was standing outside with the Craigs when a visibly angry Reese walked up to him. At his deposition, Herbert claimed that the following transpired:

[Reese] came walking up, why are all these police cars doing here. We've had a domestic call out here, everything is okay, you can go ahead and leave. I'm not leaving, I'm the landlord, and I want to know who is in charge. Sir, Corporal Geddie is in charge, he's inside. Some of the other people that were there, they started to talk about some damage inside. At that point I told everybody they could all, I said, listen, everybody, y'all need to go ahead and leave. And then the third and final time Ed Reese told me he was not leaving because he was the landlord I...

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