Tews v. Terrell, 3:20-cv-810-MMH-JBT

CourtUnited States District Courts. 11th Circuit. United States District Court of Middle District of Florida
Writing for the CourtMARCIA MORALES HOWARD United States District Judge.
PartiesCAROLYN LUKE TEWS, Plaintiff, v. T. L. TERRELL, individually, Defendant.
Docket Number3:20-cv-810-MMH-JBT
Decision Date06 December 2022



T. L. TERRELL, individually, Defendant.

No. 3:20-cv-810-MMH-JBT

United States District Court, M.D. Florida, Jacksonville Division

December 6, 2022


MARCIA MORALES HOWARD United States District Judge.

THIS CAUSE is before the Court on Defendant T. L. Terrell's Motion for Summary Judgment and Accompanying Memorandum of Law (Doc. 26; Motion) filed on May 6, 2022. In support of the Motion, Terrell submitted a number of items. See Defendant's Notice of Filing Documents in Support of Motion for Summary Judgment (Doc. 27; Defendant's Notice of Filing). First, he filed his own Declaration. Declaration of T. L. Terrell (Doc. 27-1; Terrell Declaration). Terrell also submitted a video of Plaintiff Tews' arrest (Doc. 27-2; Arrest Video), and the Field Sobriety Report from the arrest (Doc. 27-3) as well as the Sheriff's Handcuff Transport (Doc. 27-4) and Response to Resistance Policies for 2016 (Doc. 27-5). See id. Additionally, Terrell filed the Declaration of David A. Klinger, Ph.D. (Doc. 27-6), including Dr. Klinger's Curriculum Vitae (Doc. 27-7) and Expert Report (Doc. 27-8), and the Deposition Transcript of Carolyn Luke


Tews with Exhibits (Doc. 27-9) with the corresponding deposition video (Doc. 27-10; Depo. Video). Plaintiff Carolyn Luke Tews filed her corrected Response in Opposition (Doc. 35; Response) to the Motion on June 10, 2022. In support, Tews submitted her Deposition Transcript (Doc. 36-1; Depo. Transcript),[1]along with her Arrest Report and her Response to Defendant's First Set of Interrogatories (Interrogatory Answers). See Notice of Filing Deposition Transcript in Response to Motion for Summary Judgment (Doc. 36; Plaintiff's Notice of Filing). Accordingly, Terrell's Motion is ripe for the Court's consideration.

I. Procedural History

On February 7, 2020, Tews initiated this lawsuit by filing a complaint against Terrell in the Fourth Judicial Circuit Court in and for Duval County, Florida. See Complaint and Demand for Jury Trial at 1 (Doc. 2; Complaint). Terrell removed the action to this Court based on federal question jurisdiction. See Notice of Removal at 1-2 (Doc. 1). In her Complaint, Tews asserts a claim of excessive force in violation of her Fourth and Fourteenth Amendment rights (Count I) along with a state-law battery claim (Count II). See Complaint at 4- 5. Terrell filed a Motion to Dismiss Plaintiff's Complaint (Doc. 3; Motion to


Dismiss) on July 22, 2020. On September 30, 2020, the Court granted the Motion to Dismiss in part and denied it in part. See Order (Doc. 22; Order on Motion to Dismiss). Specifically, the Court dismissed the state-law battery claim, but found that Tews plausibly alleged a claim for excessive force. Id. at 15. Accordingly, Count I is the only claim remaining for consideration by the Court. Terrell now seeks the entry of judgment as a matter of law on this remaining claim, and Tews has responded in opposition.

II. Background Facts[2]

On February 8, 2016, Tews visited a pool hall from approximately 7:00 P.M. to midnight. Depo. Transcript at 31. While playing pool, she drank about two pints of beer. Id. at 62. After finishing her pool match, Tews left the pool hall and began to drive home. Id. at 29. During the drive, Tews' phone fell off her seat. Id. She swerved while trying to retrieve it, attracting Officer Terrell's attention. Id. at 29-30. Concerned that Tews might be impaired or suffering from a medical emergency, Terrell pulled her over shortly after midnight on the morning of February 9. Terrell Declaration at 3; Arrest Report at 1. After pulling over, Tews explained to Terrell that she swerved while retrieving her phone. Depo. Transcript at 33. She admitted to drinking


two pints of beer while playing pool, but told Terrell that she felt fine. Id. at 29. Terrell asked if Tews would ride with him to a nearby shopping center and take a sobriety test. Id. at 30. Tews agreed. Id.

Though she found the cold weather challenging, Tews followed Terrell's instructions and completed the Field Sobriety Exercises (FSEs). Id. at 37-38; Terrell Declaration at 4. In evaluating her performance, Terrell concluded that Tews was impaired. Id. at 4-5. He placed her under arrest, handcuffed her arms behind her back, and secured her in the back seat of his patrol car. Id.; Depo. Transcript at 39. Suffering from an old shoulder injury, Tews struggled to find a comfortable position for her left arm. Depo. Transcript at 39-40. In the process, Tews, who was 5'1” and weighed approximately one hundred pounds, slipped her left hand out of the handcuffs. Id.; Terrell Declaration at 5; see also Response at 3 (describing Tews' height and weight).

Noticing that Tews' left hand was free, Terrell told her that she had to keep the handcuffs on. Depo. Transcript at 41; Arrest Video at 00:59:51.[3] Worried about her shoulder, Depo. Transcript at 47, Tews responded “no,” and “this is ridiculous, I'm 60.” Arrest Video at 00:59:48. Terrell exited the car, opened the rear passenger-side door,[4] and repeated that Tews had to keep the


handcuffs on. Id. at 00:59:55. Terrell asked Tews to step out of the vehicle, adding that it was the Sheriff's Office policy for everybody in the back seat to be handcuffed. Id. at 1:00:06. After some hesitation, Tews complied. Id. at 01:00:10; Terrell Declaration at 5. As she was exiting the car, Tews remarked, “this is the determining factor of the rest of my life, what you're doing now.” Arrest Video at 01:00:12.

Tews has trouble remembering exactly what happened next. See Depo. Transcript at 47, 51. The Arrest Video does not show a clear view of anything outside the back seat. See Order on Motion to Dismiss at 4 (Doc. 22). However, Tews can be heard responding to Terrell's commands by saying “no, no, no,” followed by “I'm going to force you to kill me right now.” Arrest Video 01:00:26. Terrell then ordered Tews to put her hands behind her back, to which Tews responded, “no.” Id. at 01:00:34. Terrell then said, “Ms. Carolyn, do not do this.” Id. at 01:00:37. Tews asked Terrell to repeat his name, and then stated, “I want you to go ahead and kill me. I want you to go ahead and kill me right now, Terrell.” Id. at 01:00:42. The video then shows Tews sitting back down inside the police cruiser before being pulled back out by Terrell. Id. at 01:00:48; Terrell Declaration at 6 (“After a few seconds, Tews tries to get in the backseat . . . and I pull her out again.”); Depo. Transcript at 47 (“And then he pulled and pulled to the point where he got me out and that's when I don't remember anything else.”). As Terrell pulled her, Tews said, “go ahead and


dislocate my shoulder.” Arrest Video at 01:00:50. Outside the car, Terrell again commanded Tews to put her hands behind her back. Id. at 01:00:51. Terrell can then be heard saying “stop resisting,” to which Tews responded, “I'm not resisting.” Id. at 01:00:56.

It is undisputed that Tews was trying to pull her arm away from Terrell throughout this exchange. See Terrell Declaration at 6; Depo. Transcript at 68. Terrell repeated “stop resisting” four more times, each followed by Tews' denial that she was resisting. Arrest Video at 01:00:58; Terrell Declaration at 6. Terrell again commanded Tews to put her hands behind her back. Arrest Video at 01:01:08. Tews responded, “I'm not resisting. I don't have any weapons. I don't have anything.” Id. at 01:01:10.

Throughout this process, Terrell was increasingly concerned by Tews' “escalating combativeness and agitation,” and feared that the dangling handcuff could be used as a weapon. Terrell Declaration at 6-7. Terrell was also alarmed by Tews' seemingly suicidal statements along with the change in her demeanor “from compliant to combative.” Id. at 6. Because Terrell could not use his taser without releasing Tews, he decided to use “the straight-arm bar take-down technique to overcome Tews' resistance.” Id. at 7. This technique involves grabbing the subject's wrist and bicep, and rotating to the side while pulling backwards to force the subject into a prone position. Id. at 8. The arm-bar takedown is not visible in the video, but Terrell can be heard


giving a final command for Tews to put her hands behind her back. Arrest Video at 01:01:13. Tews begins to respond, but is cut short by the sound of a struggle, followed by the sound of handcuffs being applied. Id.; see also Terrell Declaration at 7 (“While on the ground, I was then able to grab both of her hands and handcuff them.”).

Tews was thrown to the "hard asphalt” during the struggle, where she landed on her face and was knocked unconscious. See Terrell Declaration 7 (describing the “hard asphalt” and Terrell's use of “the straight-arm bar takedown technique”); Depo. Transcript at 47, 52. One of Tews' teeth was knocked out on the pavement, and two others were fractured. See Depo. Transcript at 53; Terrell Declaration at 7. Tews also suffered contusions, lacerations, nerve damage, and a concussion. Depo. Transcript at 54-58. Paramedics took Tews to the hospital, and she was taken to jail upon her release the following day. Id. at 71. Her shoulder pain became more extreme, limiting her ability to work as a massage therapist and causing her to lose clients. Id. at 92-94.

Tews was charged with DUI and resisting an officer without violence, but the DUI charge was eventually reduced to reckless driving. See id. at 73; Terrell Declaration at 9. Tews does not dispute that Terrell had probable cause for the traffic stop. See Depo. Transcript at 74. The parties also agree that Terrell used no other force after taking Tews to the ground and applying the handcuffs. See Depo. Transcript at 70; Terrell Declaration at 7.


III. Legal Standard

Under Rule 56, Federal Rules of Civil Procedure (Rule(s)), “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material...

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