Stalley v. Cumbie

Citation586 F.Supp.3d 1211
Decision Date19 February 2022
Docket NumberCase No. 5:19-cv-0280-KKM-PRL
Parties Douglas B. STALLEY, as representative of the estate of Jose Gregory Villegas and on behalf of ZV and DV, minor children of the deceased, Plaintiff, v. Sheila CUMBIE, et al., Defendants.
CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida

Alan Jay Landerman, Colling Gilbert Wright & Carter, LLC, Orlando, FL, for Plaintiff.

Jeffrey Scott Weiss, Garganese, Weiss & D'Agresta, PA, Orlando, FL, for Defendants Sheila Cumbie, Florida Department of Corrections, Milton Gass, Anthony Key, Henry Fender, Scott Ake, Anildat Amrit, Brent McBride, William Smith, Dalton Tifft, Alan Perrotta, Donald Foster, James Disano, Shawn Lee.

David B. Goulfine, Robert B. Buchanan, Buchanan & Buchanan P.A., Ocala, FL, for Defendant Michael Mashburn.

ORDER

Kathryn Kimball Mizelle, United States District Judge

In cases like this one, prison officials must "balance the threat unrest poses to inmates, prison workers, administrators, and visitors against the harm inmates may suffer if [they] use force." Hudson v. McMillian , 503 U.S. 1, 6, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992). They act "in haste, under pressure, and frequently without the luxury of a second chance." Whitley v. Albers , 475 U.S. 312, 320, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986).

On March 28, 2017, prison staff at Lake Correctional Institution discovered inmate Jose Villegas unconscious in his cell. When they attempted to rouse him, Villegas awoke and fought them. As many as seven officers wrestled to restrain him. About twenty minutes later, Villegas was finally calmed and fully secured. No one checked Villegas's pulse or formally assessed his health at that time. Instead, the officers lifted Villegas into a wheelchair and transported him for a medical assessment in a treatment room in an adjacent building. While pushing the wheelchair, two or three officers kept their hands on Villegas, pushing down on his shoulders, head, and neck.

Although the buildings were close together, approximately six minutes elapsed between when the officers restrained Villegas and when they arrived in the treatment room. (Doc. 73 at 20–21, 31 n.8.) Once there, nurses discovered that Villegas was not breathing. The nurses and officers immediately began CPR. Despite their efforts to revive him, Villegas was pronounced dead upon arrival at a nearby hospital, approximately an hour after the officers discovered him in his cell.

The personal representative of Villegas's estate alleges that the officers violated federal and state law in their efforts to restrain Villegas and in their provision of medical care. Relatedly, he also alleges that the facility supervisors present on the scene are liable for their participation in the incident, their failure to properly train the officers, and their decisions to encourage or allow staff to delay medical treatment.

Despite the tragic consequences of Defendants’ action and inaction, the Court concludes that Plaintiff fails to prove that Defendants violated the Eighth Amendment's prohibitions on excessive force or deliberate indifference. Defendants are thus entitled to summary judgment on those claims. Without proof of an underlying violation of constitutional rights, Plaintiff's claims against the supervisory Defendants also fail. The Court also concludes that, in the alternative for the deliberate indifference claim, Plaintiff fails to prove that it was clearly established that Defendants’ conduct violated the Eighth Amendment, and Defendants are thus entitled to qualified immunity on that claim. And so, Defendants are entitled to summary judgment on Plaintiff's federal claims. Without these claims—and the basis for this Court's original jurisdiction—the Court declines to exercise supplemental jurisdiction over the remaining state law claim.

I. BACKGROUND1

On March 28, 2017, two correctional officers at Lake Correctional Institution walked the perimeter of E-dorm, checking each inmate's cell. As the officers approached the cell assigned to Jose Villegas, they noticed something unusual. Villegas was lying face up on the cell floor. He was not moving. The officers called for assistance.

Sergeant Henry Fender and Officer Dalton Tifft entered "the cell to try and assess the situation." (Doc. 50-1 at 35.) They saw Villegas lying motionless on the floor. (Doc. 50-2 at 4.) Fender noticed the "strong odor of something burning." (Doc. 50-1 at 26.) Although Fender and Tifft did not know it at the time, (id. at 26), the smell was K2, a form of synthetic marijuana. Prison staff later found K2 in the cell, (Doc. 48-3 at 7), and the autopsy found it in Villegas's system, (id. at 21; Doc. 54-1 at 9, 43). K2 is linked to a range of symptoms, including erratic or violent behavior, difficulty breathing, and cardiac arrhythmia

. (Doc. 47-1 at 78; Doc. 54-1 at 71.) K2 use was an increasingly serious problem at the facility, though there was no official policy or training on how officers should respond to an inmate on K2. (Doc. 61 at 16 (collecting record citations).)

After removing Villegas's cellmate from the cell, Fender and Tifft called out "wake up inmate, are you okay?" (Doc. 57-1 at 71; Doc. 50-1 at 21.) Villegas did not respond. (Doc. 57-1 at 71–72.) Fender handcuffed Villegas with his hands in front of him. (Id. at 26.) Tifft and Officer William Smith (who had since arrived), applied leg restraints. (Doc. 50-1 at 22, 43; Doc. 57-1 at 72.) Seeing labored breathing and signs of recent vomiting, (Doc. 50-1 at 43), the officers put Villegas in a recovery position, turning him on his side with his arms stretched out and head positioned "to give [him] a proper clear airway," (Doc. 57-1 at 36). As he was trained, Fender attempted to arouse Villegas by applying a sternum rub. (Id. at 32, 37.)

Suddenly, Villegas "became actively combative." (Doc. 51-1 at 141; Doc. 56-1 at 17; Doc. 57-1 at 73; Doc. 50-1 at 37.) Villegas "was kicking and attempting to strike staff with his fist." (Doc. 50-6 at 6.) Four or five officers responded by using their hands, knees, and body weight to force Villegas into a prone position. (Id. at 6–7.) Undeterred, Villegas grabbed Fender's hand and tried "to spit and bite him." (Id. ; Doc. 47-1 at 38.) Villegas, who weighed 275 pounds, (Doc. 54-4 at 3), continued fighting despite the officers’ commands to stop. (Doc. 50-6 at 6.)

As the struggle continued, Officer Brent McBride and Sergeant Anthony Key arrived. So did nurses Tammy Spencer and Paula Fischer. Fischer, looking into the cell, saw multiple officers trying to restrain Villegas and yelling "stop resisting." (Doc. 51-1 at 149.) According to Fischer, "he was absolutely resisting" and the officers "were having a hard time restraining him." (Id. ) Villegas was combative and made loud "grunting or growling sounds." (Id. at 150.) McBride called for a hand-held camera to record the incident.2 (Doc. 48-3 at 13.)

Attempting a five-man carry, Fender, Key, Tifft, McBride, and Smith pulled Villegas out of the cell so that "they had more room to try to restrain him." (Doc. 51-1 at 151; Doc. 50-1 at 43.) Villegas grabbed at the bunk to stop them. (Doc. 57-1 at 75; Doc. 77-1 at 50.) Once in the dayroom, Villegas continued to "violently" resist, physically exhausting the officers. (Doc. 51-1 at 151.) He exhibited "super-human strength" and the "strength of a grizzly bear." (Id. at 66–67.) The officers exhorted Villegas to "please stop resisting." (Id. at 66.) The officers used their arms and legs to hold Villegas down "because he kept trying to get up and get away." (Doc. 49-1 at 60.) Realizing that the five officers "could not get [Villegas] restrained," Fender called for more help. (Doc 50-1 at 39–40.)

It was at this juncture—with Villegas resisting—that the officers waived the nurses out of the room. (Doc. 51-1 at 64, 152.) The nurses quickly left the dayroom. Spencer explained that this was a "typical" safety procedure during a use of force incident. (Doc. 51-5 at 76; Doc. 47-1 at 126.)

In response to Fender's call, more officers arrived, including Donald Foster, Anildat Amrit, Alan Perrotta, Scott Ake, and Lieutenant Milton Gass. (Doc. 56-1 at 26; Doc. 47-1 at 28.) Gass took over as officer in charge. Using a tether, the officers moved the handcuffs from Villegas's front to his back to fully restrain his arms. (Doc. 57-1 at 77.) Foster helped hold down Villegas's legs and secure the leg restraints. (Doc. 56-1 at 28.) Fender was "trying to hold [Villegas] down." (Doc. 50-1 at 124.) Perrotta was helping by putting his knee and body weight on Villegas's back "in an effort to stop him from fighting." (Doc. 59-1 at 45; Doc. 47-1 at 31.) All told, as many as seven officers were pushing down simultaneously on Villegas. For much of this time, Villegas was on his stomach, restricting his ability to breath. (Doc. 51-5 at 82.)

While this process was ongoing, Major Shawn Lee, Captain James Disano, and Assistant Warden Michael Mashburn arrived. They observed but they did not participate or assume command. (Doc. 59-1 at 133–134.)

A few minutes later, the officers secured the restraints, and Gass cried out "hands on legs on!" (Doc. 50-1 at 128.) With the restraints in place, Villegas quickly "ceased his combative behavior [and] all force ceased." (Doc. 56-1 at 38.) The struggle had lasted approximately twenty-two minutes. (Doc. 61 at 10; Doc. 59-1 at 109.) At Gass's direction, the officers applied a spit shield so that Villegas could not again attempt to bite or spit at the officers. (Doc. 50-1 at 128–30; Doc. 51-5 at 128–29.)

The officers then lifted Villegas and leaned him against a table. Villegas was not combative and was not resisting. (Doc. 56-1 at 38–39.) Nevertheless, because of Villegas's size and "the violence that [just] occurred," (Doc. 59-1 at 105), Smith, Perrotta, and Tifft kept their hands on Villegas, (Doc. 47-1 at 103). At this point, Villegas's movements come into better view on the video recordings—though his back is turned and several...

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