Scott v. City of Cape Coral
| Docket Number | 2:21-cv-674-JES-NPM |
| Decision Date | 06 July 2023 |
| Parties | ARTHUR SCOTT, Plaintiff, v. CITY OF CAPE CORAL, FLORIDA, ANTHONY SIZEMORE, in his official capacity as Chief of Cape Coral Police Department, HUMBERTO VAZQUEZ, individually, and CAROLINE SEWRY-MARTINS, individually, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
This matter comes before the Court on Defendants' Motion for Summary Judgment. (Doc. #48.) Plaintiff filed a Response in Opposition (Doc. #52), and Defendants filed a Reply. (Doc #62.) For the reasons set forth below, the motion is denied as moot as to defendant Caroline Serwy-Martins[1] (who was previously dismissed) and is otherwise granted.
The parties initially agreed that the material facts are undisputed and are largely established by video from the officers' body cameras. (See Doc #62, p. 1) (“Indeed, the material facts are not disputed; they are on camera.”); (Doc #52, p. 1) (“Defendants are also correct in that the events of the encounter, captured on camera, are undisputed.”). Plaintiff later argued however, that there are disputed issues of material facts which preclude summary judgment. (Doc. #52, pp. 10, 13.) In any event, for summary judgment purposes the undisputed material facts (herein the “summary judgment facts”) are as follows:
On March 31, 2019, a neighbor reported to the Cape Coral Police Department that a male (later identified as plaintiff Arthur Scott) and a female (later identified as his girlfriend Samantha Malay) were yelling and screaming in a certain apartment. Police dispatch relayed the information and officers Humberto Vazquez (Officer Vazquez) and Caroline Serwy-Martins (Officer Serwy-Martins) of the Cape Coral Police Department responded separately to the apartment complex at about 6:15 p.m.
Officer Vazquez arrived first and spoke briefly with Ms. Malay in a parking lot in front of the apartment complex. Ms. Malay advised Officer Vasquez that Scott had pushed her and hit her in the face, and that she had made Scott's nose bleed in her efforts to push him away. Officer Vazquez left Ms. Malay and went to Scott's apartment, but no one answered when he knocked on the door.
Meanwhile Officer Serwy-Martins arrived at the apartment complex and spoke with Ms. Malay in the parking lot. Ms. Malay said she had a verbal altercation with Scott that had become physical. Ms. Malay further stated that they had both pushed each other while inside the apartment, and Scott had received a bloody nose. Officer Serwy-Martins directed Ms. Malay to follow her, and they both headed toward a dock behind the apartment complex.
Officer Vazquez arrived at the dock first and found Scott standing on it with blood drying on his face. Officer Vazquez approached Scott and said “I'm gonna need you to step over here for me, okay?” Scott responded Officer Vazquez replied, “Well they called the police and were trying to figure out what's going on.” Officer Vazquez told Scott two more times to “step over here.” By then Officer Serwy-Martins had arrived and she interjected, Scott seemingly ignored the comment, turned his back to the officers, and slightly pivoted a chair next to him. Officer Serwy-Martins stated, “Are you fucking serious?” The comment ignited a short back and forth between the three, but Scott eventually walked off the dock and towards the officers.
Officer Serwy-Martins said, As Scott approached, she said “put your hands on your head for me.” Scott proceeded to raise his arms but, instead of putting his hands on his head, he put them on a nearby palm tree. With Scott's back to her, Officer Serwy-Martins reached for her handcuffs and repeated: After two or three seconds of stillness, Officer Serwy-Martins said “alright,” and grabbed Scott's arm in an apparent attempt to handcuff him. Scott's arm swung back, he turned to face Officer Serwy-Martins, and said Officer Vazquez then tackled Scott to the ground in what Scott characterizes as an “unlawful take down.” (Doc. #35, ¶ 30.)
Upon impact, Scott immediately started shrieking and groaning. After handcuffing Scott, Officer Serwy-Martins attempted to turn the facedown Scott over. Scott exclaimed “wait, wait,” “my leg, oh please, just let my leg go.” Officer Vazquez, who was still straddled over Scott, got up and slightly moved Scott's leg. Scott screamed in apparent pain and Officer Serwy-Martins asked, “Do you want me to call EMS?” Scott responded “Yes.”
Scott laid on the ground for approximately eight minutes until Fire Department personnel arrived. At that point he was uncuffed and the Fire Department personnel began evaluating him.
Approximately another two minutes passed until EMS personnel arrived, and likewise started evaluating Scott. Officer Vazquez told an EMS medic:
EMS continued evaluating Scott, and after about six minutes an EMS medic declared “as far as we're concerned, he's good to go.” Immediately afterwards, an unidentified officer standing directly behind Scott said, “alright sir, stand up.” This command was repeated twice more before Officer Sarah Johnson stood Scott up with the aid of other officers. Scott was re-handcuffed and led to start walking by an unidentified officer. On his first step, Scott grimaced. Officer Zarillo commented “Now we're gonna play the ‘my hip hurts game,'” and Scott retorted “I'm not playing no game, guy!”
Scott took about three steps before he shrieked and fell to the ground. The unidentified officer and Officer Zarillo picked Scott up - Officer Zarillo from the left arm and the unidentified officer from the right arm. Scott took another couple steps before his legs went limp and the officers started dragging him. These officers dragged Scott for about eight seconds before Officer Zarillo stopped and exclaimed, “Stand up and walk like an adult!” Scott responded whereupon the deputies continued to drag Scott with his legs dangling.
The officers dragged Scott a couple more steps until they reached the front of the apartment complex. They then laid Scott on the pavement. The officers repeatedly told Scott to “get up” and Scott repeatedly responded that he could not. The unidentified officer and Officer Johnson then picked Scott up. Scott took a couple more steps before whimpering “I really can't walk,” and fell again. At this point, Officer Zarillo signaled for the medics and told the other officers
With Scott audibly shrieking and howling in the background, Officers Vazquez and Serwy-Martins spoke with the alleged victim near the dock. The same EMS medic that initially cleared Scott returned and said:
While at the front of the apartment complex, Officer Johnson stood over Scott and told him “So we're gonna transport you but were gonna sit with you and you're still going to jail.” Scott interjected Officer Johnson continued, “cause you are a piece of shit that does not need medical attention.” Officer Johnson kept lambasting Scott and, in the middle of it, Scott asked, “Can you just pull my leg out?” Officer Johnson quickly answered “Fuck no.”
EMS arrived and put Scott onto a stretcher. Officer Johnson stood next to the stretcher and told Scott Scott replied “Ok, that is good to know.” Officer Zarillo then said, “I just hope the catheter doesn't hurt!” Officer Johnson began to walk away from the stretcher and remarked, “Grown man with a tramp stamp.” Officer Johnson then returned to Scott's side by the stretcher and the following interaction took place:
Scott was transported to the Hospital and underwent the first of two surgeries for a fractured and dislocated hip. After his release from the hospital, Scott was arrested and the State...
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