Hadley v. Gutierrez

• Decision Date: 06 May 2008
• Docket Number: No. 06-12605.,06-12605.
• Citation: 526 F.3d 1324
• Parties: Michael E. HADLEY, Plaintiff-Appellee, v. G. GUTIERREZ, Miami Beach Police Officer, Badge # 710, J. Ortivero, Miami Beach Police Officer, Badge # 707, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

526 F.3d 1324

Michael E. HADLEY, Plaintiff-Appellee, v. G. GUTIERREZ, Miami Beach Police Officer, Badge # 710, J. Ortivero, Miami Beach Police Officer, Badge # 707, Defendants-Appellants.

No. 06-12605.

United States Court of Appeals, Eleventh Circuit.

May 6, 2008.

Joshua Michael Entin, Rosen, Switkes & Entin, P.L., Miami, FL, Sheri A. Sack, Donald M. Papy, Legal Dept., City of Miami Beach, Miami Beach, FL, for Defendants-Appellants.

Arthur J. England, Jr. (Court-Appointed), Daniel M. Samson, Greenberg, Traurig, Hoffman, Lipoff, Rosen & Quentel, P.A., Maimi, FL, for Hadley.

Appeal from the United States District Court for the Southern District of Florida.

Before WILSON, COX and BOWMAN,^* Circuit Judges.

COX, Circuit Judge:

This excessive force case is before us on interlocutory appeal from the district court's order denying Defendants Ortivero's and Gutierrez's motion for summary judgment seeking qualified immunity. We affirm in part and reverse in part.

I. Background

Michael Hadley filed pro se a civil rights complaint under 42 U.S.C. § 1983 against Miami Beach police officers German Gutierrez and Jose Ortivero ("Defendants").¹ Hadley filed his complaint after pleading guilty in Florida state court to one count of resisting arrest with violence in violation of Fla. Stat. § 843.01.

The parties agree that while high on cocaine, Hadley entered a Publix supermarket yelling, "Help me, help me, Jehovah God please help me!" and Defendants, upon arriving at the store, found Hadley running around and knocking items off of the shelves. (R.1-1 at 4.) Their agreement on the facts ends here.

According to his complaint,² the Defendants "drew their guns and ordered Mr. Hadley to freeze. Mr. Hadley immediately complied and Defendants Gutierrez and Ortivero then proceeded to restrain Mr. Hadley by placing him in handcuffs behind his back ... without incident." (R.1-1 at 5.) While handcuffed and being led from the store, he again began asking for Jehovah's protection. "Defendants Gutierrez and Ortivero started punching Mr. Hadley in his stomach and face until he was beaten into a state of unconsciousness. While they were doing this the Defendants were yelling `Shut up nigger' in response to Mr. Hadley[']s plea for help from Jehovah God." (R.1-1 at 5.) Hadley testified to essentially the same story in his deposition, but the only excessive force he complained about was a single punch to the stomach by Officer Ortivero.³

Hadley recounts a slightly different version of the facts in his Response to Defendants' Motion for Summary Judgment ("sworn response"). (R.2-92.) The most important difference is his contention that he did resist arrest while inside the Publix. See R.2-92 at 4 ("[I]t is clearly established that Plaintiff's arrest, plea, and conviction for the offense of resisting arrest with violence was grounded on the initial contact between Plaintiff Hadley, and Defendants Gutierrez, and Ortivero, ... which took place within the Publix supermarket ...."); id. at 5 ("[b]ased on the first act of resisting arrest with violence within the Publix supermarket by Plaintiff").

Not surprisingly, Defendants offer a different version of the events that transpired that night. According to their account, Hadley did not cooperate when they ordered him to freeze in the Publix. Instead, he began "to swing his arms in a violent manner and began screaming `Jehovah take me, Jehovah take me.' After [a] struggle w[ith] Def[endant] he was finally taken into custody." (R.2-84, Ex. 1 at 2.) Once outside of the store and en route to the police car, they contend, Hadley "became irate and began to start kicking at both officer[s] ... at which point he was redirected to the ground," causing a visible laceration to his face. (Id.) Officer Gutierrez's report of the incident does not mention any blows to Hadley's stomach or face, nor does Sgt. Smith's supervisor report.

After pleading guilty in Florida state court to one count of resisting arrest with violence, Hadley filed this § 1983 civil rights complaint. In pertinent part, Hadley alleges that Defendants used excessive force and that they conspired to cover up their use of excessive force. The district court adopted in part the magistrate judge's report and recommendation, and denied qualified immunity to the Defendants.⁴ Defendants filed this interlocutory appeal, and we appointed counsel for Hadley.

II. Standard of Review

Summary judgment is appropriate where "there is no genuine issue as to any material fact and ... the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). We review denial of summary judgment de novo, viewing the facts in the light most favorable to the nonmovant. Dyer v. Lee, 488 F.3d 876, 878 (11th Cir.2007). "In exercising our interlocutory review jurisdiction in qualified immunity cases, we are not required to make our own determination of the facts for summary judgment purposes; we have discretion to accept the district court's findings, if they are adequate." Cottrell v. Caldwell, 85 F.3d 1480, 1486 (11th Cir. 1996).

III. Jurisdiction and Issue On Appeal

We have interlocutory jurisdiction to review the denial of summary judgment in qualified immunity cases where our review requires a determination of the clearly established law that existed at the time of the allegedly unlawful acts. See Cottrell, 85 F.3d at 1484 (citing Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985)). We also have jurisdiction if the district court simply rules that "material issues of fact" precluded summary judgment. See id. at 1484-85 (citing Behrens v. Pelletier, 516 U.S. 299, 312-13, 116 S.Ct. 834, 842, 133 L.Ed.2d 773 (1996)). Finally, in the course of deciding an interlocutory appeal, we have authority to decide those evidentiary sufficiency issues that are part and parcel of the core qualified immunity issues. Id. at 1486.

In light of our limited jurisdiction, the issue on appeal is whether the district court erred in denying Defendants' motion for summary judgment seeking qualified immunity. In order to decide that issue, however, we must consider Defendants' other arguments to the extent they are intertwined with the qualified immunity analysis.

IV. Discussion

Qualified immunity shields government officials from liability for civil damages for torts committed while performing discretionary duties unless their conduct violates a clearly established statutory or constitutional right. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). There is no dispute that Defendants were engaged in a discretionary duty while arresting Hadley. So the burden shifted to Hadley on summary judgment to show that Defendants are not entitled to qualified immunity. Dahl v. Holley, 312 F.3d 1228, 1233 (11th Cir. 2002).

Qualified immunity involves a two-step inquiry. The first question is whether "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show [that Defendants'] conduct violated a constitutional [or statutory] right?" Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001). If so, the second question is whether the right, be it constitutional or statutory, was clearly established. Id.

A. Constitutional Violations

In his complaint, Hadley alleges two possible constitutional violations. He first alleges that "Defendants Gutierrez and Ortivero, in using excessive force against Mr. Hadley[,] violated the Eighth and Fourteenth Amendments" to the Constitution. (R.1-1 at 9.) He also alleges that the Defendants' "conspiracy to cover up this incident violates the Eighth and Fourteenth Amendments [to] the United States Constitution, and 42 U.S.C. § 1983." (Id. at 9-10.) We address each allegation in turn.

1. Excessive Force

In an excessive force case arising out of an arrest, whether a constitutional violation occurred is governed by the Fourth Amendment's "objective reasonableness" standard. Brosseau v. Haugen, 543 U.S. 194, 197, 125 S.Ct. 596, 598, 160 L.Ed.2d 583 (2004) (citing Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), and Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). A genuine "excessive force" claim relates to the manner in which an arrest was carried out, independent of whether law enforcement had the power to arrest. Bashir v. Rockdale County, Ga., 445 F.3d 1323, 1332 (11th Cir.2006). Our cases identify several factors instructive in determining whether an officer's use of force was objectively reasonable, including "(1) the need for the application of force, (2) the relationship between the need and the amount of force used, (3) the extent of the injury inflicted and, (4) whether the force was applied in good faith or maliciously and sadistically." Slicker v. Jackson, 215 F.3d 1225, 1233 (11th Cir.2000).

The district court refused to consider Hadley's sworn response to the Defendants' motion for summary judgment because it contradicted his prior deposition testimony. In his deposition, Hadley testified that "Ortivero punched me in the stomach and said, `Shut up, nigger,' and, ... that is all I remember." (R.2-99 at 19:20-21.) In his sworn response, however, Hadley claimed that "Gutierrez and Ortivero ... made racial slurs (shut up nigger), and then commenced to beat Plaintiff about the head and stomach and in fact beat Plaintiff into a state of unconsciousness, causing severe permanent injury ...." (R.2-92 at 8.) Under our precedent, the district court was free to disregard Hadley's sworn response as contradictory to his prior deposition testimony. See Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir.1984) ("When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact, that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation,...