LEACH

v.

SARASOTA COUNTY

This cause comes before the Court upon the Defendants’ Motion for Summary Judgment (Doc. 82). Plaintiff James R. Leach responds in opposition (Doc. 97). Proceeding pro se, James R. Leach lodges numerous claims under 42 U.S.C. § 1983 and Florida law against the Sarasota County Sheriff and certain deputy sheriffs. The Sheriff and the deputy sheriffs now move for summary judgment on all claims. For the reasons set forth below, the Court will grant Defendants’ Motion for Summary Judgment.

I. BACKGROUND

A. Statement of Facts2

The events giving rise to this action occurred at 360 Center Road in Venice, Florida, on February⁷, 2017. Doc. 101 at 2. At that time, James R. Leach resided with his mother at that location. Id. Leach’s mother called the police to report a domestic disturbance. Doc. 83 at 4:5–10, 5:19–25, 6:1.3 Sarasota County Deputy Sheriff Lori Beth Clark responded to the call and was the first officer to arrive on scene. Id. at 4:11–

13. Leach’s mother was at the scene; Leach was not. Id. at 6:2–7; Doc. 95 at 1.4

Id. at 7:14–23, 8:2–22, 34:15–20. Leach also does not dispute that during Clark’s research into the two parties involved in the domestic disturbance call, a DAVID search displayed the registered owner of a white van, who was the other party involved in the domestic dispute, along with a photograph of the owner. Id. at 11:22–25, 14:16–

24. Clark also conducted a driver’s license check on Leach. Id. at 34:15–25, 35:23–25, 36:1–2. Clark learned from the search that Leach’s license was suspended and that he had three prior convictions for driving while his license was suspended. Id. at 34:8–25, 35:5–13, 37:21–25, 38:1–4, 56:21–25; Doc. 93-1 at 18:22–25, 19:1–10, 32:17–21. Clark not excused simply because a party is proceeding pro se). Instead, he timely filed his amended response and that response references earlier evidence. As such, the Court will consider Leach’s submitted evidence. See Strickland v. Norfolk S. Ry. Co., 692 F. 3d 1151, 1154 (11th Cir. 2012) (stating that district courts “must consider all evidence in the record when reviewing a motion for summary judgment—pleadings, depositions, interrogatories, affidavits, etc.—and can only grant summary judgment if everything in the record demonstrates that no genuine issue of material fact exists”). believed that “three [prior DWLS] convictions was a felony [DWLS], and therefore was arrestable.” Doc. 83 at 32:12–22. The parties also do not dispute that, at some point after Clark’s arrival, Leach drove by the residence in his van. Doc. 83 at 10:9–12; Doc. 95 at 1. Beyond that, Clark and Allport testified that Clark observed Leach and that the deputies followed him. Clark and Allport testified to the following facts. Clark claims that she observed a white van driving west on Center Road while conducting the driver’s license check on Leach outside the home, Doc. 83 at 10:9–13, 13:2–3, whereas Allport testified that he and Clark had already departed from the residence and were “maybe a half mile away from the residence” when they “ma[de] contact” with Leach, Doc. 93-1 at 9:1–25, 10:1. Clark identified the van’s driver, who was the other party involved in the reported disturbance, as Leach. Doc. 83 at 11:22–25, 14:16–24, 56:21–25; Doc. 93-1 at 11:16– 23. Leach’s mother had informed Clark that Leach was wearing a red shirt, and Clark observed that the van’s driver was also wearing a red shirt. Doc. 83 at 15:19–23, 55:2– 10. Because the driver matched the description of Leach based upon Clark’s observation of the white van, the driver’s license photograph on DAVID, and the red shirt, Clark pursued the van. Id. at 11:22–25, 15:6–10, 24–25, 16:1–5. According to Clark, she drove her vehicle out of the driveway, turned right onto

Center Road, and traveled eastbound briefly before making a U-turn into the westbound left lane of Center Road to initiate a traffic stop. Id. at 24:14–22. She turned on her patrol vehicle’s emergency lights as soon as she pulled out of the driveway to initiate the traffic stop. Id. at 19:20–25, 20:1. She testified that Allport was behind her in his vehicle. Id. at 25:5–7. The van continued to drive west, and Clark followed the van to a traffic light. Id. at 19:14–19, 24:21–25. The van then made a U-turn, traveled eastbound, and pulled into the residence’s driveway. Id. at 19:14–19, 24:23–25, 25:1–

5. As a result, Clark “basically made a big circle” in pursuing the van. Id. at 25:3–4. On the other hand, Leach claims in his affidavit that when he drove back to the house from the Venice Food Mart, he observed two patrol vehicles outside the house. Doc. 95 at 1. As a result, he drove past the house and back to the Venice Food Mart.

Id.5 When he drove back to the house for the second time, he observed that the patrol vehicles were gone, and he pulled into the driveway. Id. Contrary to the testimony of Clark and Allport, Leach asserts that no patrol vehicle pulled behind him for an attempted traffic stop. Doc. 95 at 2. The parties do not dispute that, at some point, Leach drove the van into the residence’s driveway, exited the van, and entered the house. Doc. 83 at 17:20–25, 18:1–10; Doc. 93-1 at 13:8–22. But the parties dispute whether Clark and Allport encountered Leach in the driveway. Clark and Allport testified to the following facts as to that encounter. The van, on which Clark and Allport had attempted to initiate a traffic stop, pulled into the driveway, and Leach exited the van. Doc. 83 at 17:20–24;

Doc. 93-1 at 13:20–22. Clark testified that she asked Leach for his driver’s license, but he stated that he did not have a driver’s license, or something to that effect, and walked

Leach for felony DWLS. Doc. 101 at 2; Doc. 95 at 17:19–25. While inside the residence, Small tasered Leach once. Doc. 101 at 2. The parties present differing accounts of what occurred in the house. First, the parties dispute whether Leach’s mother opened the door to the house for the deputies. Doc. 93-1 at 24:16–23; Doc. 84 at 8:14–16; Doc. 95 at 2. The following facts are derived from testimony of Allport, Clark, or Small. The deputies approached Leach in the chair, and Allport told him to stand up because he was under arrest for driving with a suspended license. Doc. 93-1 at 27:25, 28:1–3; Doc. 83 at 45:8–15. Leach refused to stand up. Doc. 84 at 9:16–20. When the officers tried to place handcuffs on Leach’s left wrist, Leach physically resisted: he clenched his fists, tightened his body,

pulled his arms in front of himself, braced and twisted his body, and refused to be handcuffed. Doc. 83 at 44:22–25, 45:1–7; Doc. 84 at 9:16–25, 10:1–4; Doc. 93-1 at 28:8–13, 53:6–13. Leach yelled obscenities at the deputies. Doc. 93-1 at 53:20–25. All three deputies attempted to place Leach in handcuffs. Doc. 84 at 14:4–7. Allport grabbed Leach’s wrist “to get into a position” where the deputies “could handcuff

[Leach’s] right wrist.” Doc. 93-1 at 40:14–21. Allport testified that as they stood up and tried to get Leach’s right wrist behind his back, Leach tried pulling away and spinning. Id. at 41:2–9. A struggle ensued as Allport attempted to pull Leach’s wrist behind his back to secure the other handcuff. Id. at 57:1–11. Allport tried to get Leach’s right wrist in a wristlock and he, along with Small, stumbled towards the living room wall. Id. at 41:2–9. Small states that she warned Leach that she would taser him if he did not cease resisting. Doc. 84 at 30:14–17. According to Small, Leach replied, “Go ahead and tase me, you f*g c**t.” Id. at 30:21–24. She deployed her taser because Leach had been instructed several times to cease resisting and he repeatedly refused to comply. Id. at 28:4–7, 33:20–25. Small deployed the taser one time while Leach was standing and up against the living room wall, not while he was on the floor. Id. at 14:11–25, 15:1–4. Leach was then placed face down on the floor and the handcuffs were secured. Id. at 14:11–15. While Leach resisted, he did not indicate to Small or any other deputy that he had a metal plate in his right arm. Id. at 34:21–25; Doc. 93-1 at 33:14–19. Small testified that Leach advised her of medical conditions that he was experiencing only later that day. Doc. 84 at 10:5–7. Leach advised that his arm hurt because he had fallen at work. Id. at 35:3–17. On the way to jail, Leach told Small that his arm hurt and referenced a broken arm and an injured back. Id. at 20:11–22, 35:8–22. Allport did not notice any injuries on Leach, except for the taser marks. Doc. 93-1 at 55:5–8. However, Leach states in his affidavit that, upon the deputies’ entry into the home, he asked them for a warrant and inquired why they had walked into the home. Doc. 95 at 2. He claims that he did not threaten them. Id. He asserts that Allport extracted him from the chair and forced him to the floor, which “caused a great impact and laceration” to his elbow. Id. Allport and “the other deputy” tried to straighten his right arm, but Leach explained that he had a metal plate in his arm and that his arm could not straighten. Id. Although he asked them to stop, the deputies laughed and continued. Id. “One deputy” kneed him in his back, causing “shock waves of pain.” Id. And Small tasered him while he was lying on the floor in handcuffs. Id.

The facts reveal no dispute that, after Leach’s arrest, Sergeant Matt Tuggle and Deputy Sheriffs Kyle Poinsett and Kyle Collison arrived to the scene. Doc. 89-7 at 7:5–16, 8:17–22; Doc. 84 at 16:10–15. Tuggle served as a supervisor. Doc. 95 at 7:10– 13, 11:1–10. Leach was taken into custody, placed in a patrol vehicle, and transported to jail. Doc. 101 at 2. Small testified to the following facts concerning her escort of Leach to her patrol vehicle, which Leach has not addressed. Small claims that, with Leach handcuffed, she and Collison assisted him to the patrol vehicle. Doc. 84 at 16:23–25, 17:1. According to Small, Leach resisted on the way by dropping his body weight several times, so the deputies picked him up by his arms only. Id. at 17:5–17.

Leach tried using his legs to avoid being placed into the vehicle. Id. The parties agree that Leach was inside the patrol vehicle with the windows up for approximately 45 minutes before his transport to jail. Doc. 95 at 2; Doc. 84 at 18:19–25, 19:6–7. Leach was transported to jail at 6:34 p.m. Doc. 89-6 at p.12. However, disputes as to the conditions within the vehicle exist. Small testified that the patrol car was running and that she was inside the vehicle. Doc. 84 at 19:3–10. She claims that she completed paperwork, waited for paperwork from other deputies, and waited for her trainee to arrive during that time. Id. at 35:23–25, 36:1–10. She also stated that she may have exited the vehicle for a few moments to speak with other deputies, but she was never away from the vehicle. Id. at 19:11–15. However, in his affidavit, Leach states that the deputies left him in the hot vehicle, with no air conditioning, and that Small was not in the vehicle. Doc. 95 at 2.7 Leach denies physically threatening the deputies. Id.

B. Procedural Posture

In the operative complaint, Leach sues Allport, Clark, Small, Collison, Tuggle, Poinsett—each in his or her individual capacity—and Sarasota County Sheriff Kurt Hoffman. See Doc. 50 ¶¶8–14. The thirteen-count complaint contains a variety of claims, including excessive-force claims under 42 U.S.C. § 1983 and state-law claims for battery and negligence. Leach previously dismissed “Sarasota County Commissioners” as a defendant from the action (Doc. 53), which resulted in the dismissal of some claims. Hoffman, Allport, Clark, Small, Collison, Tuggle, and Poinsett seek summary judgment on all claims (Doc. 82), which Leach opposes (Doc.

97).8 The motion is ripe for the Court’s review.⁹

II. LEGAL STANDARD

Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, with the affidavits, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of stating the basis for its motion and identifying those portions of the record demonstrating the absence of genuine issues of material fact. Celotex, 477 U.S. at 323; Hickson Corp. v. N. Crossarm Co., 357 F. 3d 1256, 1259–60 (11th Cir. 2004). That burden can be discharged if the moving party can show the court that there is “an absence of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325. When the moving party has discharged its burden, the nonmoving party must then designate specific facts showing that there is a genuine issue of material fact. Id. at 324. Issues of fact are “genuine only if a reasonable jury, considering the evidence present, could find for the nonmoving party,” and a fact is “material” if it may affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986). In determining whether a genuine issue of material fact exists, the court must consider all the evidence in the light most favorable to the nonmoving party. Celotex, 477 U.S. at 323. But a party cannot defeat summary judgment by relying on conclusory allegations. See Hill v. Oil Dri Corp. of Ga., 198 F. App’x 852, 858 (11th Cir. 2006).10 Summary judgment should be granted only if “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “The court need consider only the cited materials, but it may consider other materials in the record.” Fed. R. Civ. P. 56(c)(3).

III. DISCUSSION

The Court will review qualified immunity before turning to Leach’s claims.

A. Qualified Immunity

“To establish the defense of qualified immunity, the burden is first on [the public official] to establish that the allegedly unconstitutional conduct occurred while he was acting within the scope of his discretionary authority.” Harbert Int’l, Inc. v. James, 157 F. 3d 1271, 1281 (11th Cir. 1998). A government official acts within his or her discretionary authority “if the actions were (1) undertaken pursuant to the performance of [his or her] duties and (2) within the scope of [his or her] authority.” Lenz v. Winburn, 51 F. 3d 1540, 1545 (11th Cir. 1995) (internal quotation marks and alterations omitted). In applying this test, “a court must ask whether the act complained of, if done for a proper purpose, would be within, or reasonably related to, the outer perimeter of an official’s discretionary duties.” Harbert, 157 F. 3d at 1282 (internal quotation marks omitted).

“satisfy the following two-pronged inquiry: (1) whether the facts that a plaintiff has shown make out a violation of a constitutional right; and (2) whether the right at issue was clearly established at the time of the defendant’s alleged misconduct.” Gilmore v. Hodges, 738 F. 3d 266, 267 (11th Cir. 2013) (citing Pearson v. Callahan, 555 U.S. 223,

232 (2009)). A court may address either prong first. See Pearson, 555 U.S. at 236. A court must “resolve all issues of material fact in favor of the plaintiff, and then determine the legal question of whether the defendant is entitled to qualified immunity under that version of the facts.” Stephens v. DeGiovanni, 852 F. 3d 1298, 1313 (11th Cir. 2017) (internal quotation marks omitted). With the facts construed in this manner, the

Court “ha[s] the plaintiff’s best case” and “material issues of disputed fact are not a factor in the court’s analysis of qualified immunity and cannot foreclose the grant or denial of summary judgment based on qualified immunity.” Id. (internal quotation marks omitted). B. Count I – Excessive Force under 42 U.S.C. § 1983 against Allport, Clark, and Small In Count I, Leach sues Allport, Clark, and Small for excessive use of force in violation of his rights under the Fourth and Fourteenth Amendments. See Doc. 50 ¶120. Clark argues that Leach cannot establish an excessive-force claim because the undisputed facts show that she did not apply physical force against Leach. Doc. 82 at 10. Allport and Small argue that the undisputed facts indicate that the force applied in arresting Leach was objectively reasonable, thereby precluding a Fourth Amendment excessive-force claim. Id. at 10–12. And all three deputies argue that even if the undisputed facts demonstrate a constitutional violation, qualified immunity applies because Leach cannot demonstrate that they violated clearly established law. Id. at 15– 16. While the contours of this claim are unclear because Leach brings the claim against Allport, Clark, and Small, the Court construes this excessive-force claim, as framed by Leach, as arising from his arrest within the residence. As such, the Fourth

Amendment, not the Fourteenth Amendment, governs this excessive-force claim. Lee v. Ferraro, 284 F. 3d 1188, 1197 (11th Cir. 2002). Because Allport, Clark, and Small have raised qualified immunity as a defense in seeking summary judgment, the Court must analyze qualified immunity as to each deputy.¹¹ See Alcocer v. Mills, 906 F. 3d 944, 951 (11th Cir. 2018). The parties do not dispute that Allport, Clark, and Small entered the residence and arrested Leach. The parties also do not dispute that Small was one of the deputies who escorted Leach from the residence to the patrol vehicle. Allport, Clark, and Small each acted within their discretionary authority. See Perez v. Suszczynski, 809 F. 3d 1213, 1218 (11th Cir. 2016) (“Here, because Suszczynski was attempting to arrest or restrain Arango, Suszczynski was ‘clearly engaged in a discretionary capacity,’ which means immunity could attach to his actions.”); Tucker v. Bradshaw, No. 11-80058-CIV-Ryskamp/Hopkins, 2012 WL

force claim in violation of the Fourth Amendment. Nolin v. Isbell, 207 F. 3d 1253, 1257 (11th Cir. 2000). But while the use of force below a de minimis threshold ordinarily will not be actionable, de minimis force will violate the Fourth Amendment if the officer is not entitled to arrest or detain the suspect. Reese v. Herbert, 527 F. 3d 1253, 1272 (11th

Cir. 2008). To that end, the Court must analyze whether the deputies had probable cause or arguable probable cause. See id. (reciting the standards for probable cause and arguable probable cause in the context of analyzing an excessive-force claim and stating “[w]e begin our inquiry, therefore, with the question of whether [the deputy sheriff] had probable cause or arguable probable cause to arrest” the plaintiff). To determine whether probable cause existed, a “reviewing court must simply ask ‘whether a reasonable officer could conclude . . . that there was a substantial chance of criminal activity.’” Washington v. Howard,² F. 4th 891, 899 (11th Cir. 2022) (alteration and emphasis in original) (quoting District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018)). “Probable cause does not require conclusive evidence and is not a high bar.” Id. (internal quotation marks omitted). As for arguable probable cause, the Eleventh Circuit has previously stated that “[a]rguable probable cause exists where reasonable officers in the same circumstances and possessing the same knowledge as the [d]efendants could have believed that probable cause existed . . . .” Brown v. City of Huntsville, 608 F. 3d 724, 734 (11th Cir. 2010). Despite Leach’s arrest, the summary judgment record contains few records related to the arrest. But the parties do not dispute that Leach was arrested for felony

DWLS or that Allport, Clark, and Small entered the residence to arrest Leach for felony DWLS.¹² Thus, the Court examines whether Clark had probable cause or arguable probable cause to arrest Leach for felony DWLS to determine whether any de minimis force was unreasonable. In 2017, Section 322.34 of the Florida Statutes provided, in relevant part:

Rule 56(c), the Court deems these facts undisputed for purposes of the Motion for Summary Judgment. See Fed. R. Civ. P. 56(e)(2). For knowledge of the license suspension, the Motion for Summary Judgment argues that Leach’s statement in the front yard that he did not have a license indicated to Clark that he knew of the license suspension. Doc. 82 at 14. But under Leach’s version of the facts, which the Court must accept, no deputy made contact with him in the front yard. Nonetheless, the statute provided that knowledge of a suspension is met if the driver had been previously cited for driving with a suspended license, as provided in Section 322.34(1). Because the undisputed facts show that Clark learned that Leach had three prior convictions for driving with a license suspended, the knowledge element was met under Florida law. Even if Leach did not have provided in s. 322.245 other than those specified in s. 322.245(1),” upon a second or later conviction for the same offense of knowingly driving with a suspended license, that person committed a misdemeanor of the first degree. Fla. Stat. § 322.34(10)(a)–(b) knowledge, arguable probable cause does not require an arresting officer to prove every element of an offense. United States v. Quintana, 594 F. Supp. 2d 1291, 1299 (M.D. Fla. 2009) (“While the knowledge element may be critical in securing a conviction under

Fla. Stat. § 322.34(2), ‘[n]o officer has a duty to prove every element of a crime before making an arrest.’”). For the final element, Clark testified that she saw Leach driving while situated in the driveway and immediately pursued him, which led the deputies back into the driveway, where they commanded Leach to stop. But Allport testified that Clark advised that she saw the van after they left the scene and that he followed her when she turned her patrol vehicle around to follow it.¹⁴ Under Leach’s version of the facts, which the Court must accept as true, he drove by the house once when the police vehicles were parked in the driveway; he drove by a second time when no police vehicles were in the driveway; no patrol vehicle pulled behind him for an attempted traffic stop; he pulled into the driveway without making contact with any deputy.¹⁵

Allport, Clark, and Small entered the residence through the unlocked front door. He asked them for a warrant and inquired why they had entered the residence, but he did not threaten them.¹⁶ The deputies then used force in arresting him: Allport forced him license; Clark and Allport saw the van and pulled their patrol vehicles behind the van; and Clark and Allport attempted a traffic stop on the van, but the van had pulled into the driveway. Doc. 50 ¶¶ 21–23. Regardless, these contrary allegations do not change the analysis, as the Court must look to the evidence in determining the facts in ruling upon the Motion for Summary Judgment.

Determining whether the force used to effect a particular seizure is “reasonable” requires “a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” Lee, 284 F. 3d at 1197 (internal quotation marks omitted). Balancing the necessity of using some force against the arrestee’s constitutional rights entails consideration of several factors, including “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers and others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. at 1197–98 (internal quotation marks omitted). Other considerations include the need for arresting officer lacked the power to make an arrest, the excessive force claim is entirely derivative of, and is subsumed within, the unlawful arrest claim.”). Rather, he claims the force was excessive because of the injuries that he sustained from that force, including Small’s use of the taser. The Court will not rewrite the complaint for Leach to bring a claim against the officers for violation of the Fourth Amendment as a result of a warrantless entry. See Campbell v. Air Jamaica Ltd., 760 F. 3d 1165, 1168 (11th Cir. 2014) (stating that the leniency afforded to pro se litigants does not give a court license to rewrite an otherwise deficient pleading to sustain an action). the application of force, the relationship between the need and the amount of force used, and the extent of the inflicted injury.” Mobley, 783 F. 3d at 1353. The Eleventh Circuit has rejected the argument that force administered by each defendant in a collective beating must be analyzed separately. Velazquez v. City of Hialeah, 484 F. 3d 1340, 1342 (11th Cir. 2007). Upon review, Leach fails to establish a constitutional violation here. First, DWLS is not a severe offense. Because more force is appropriate for a more serious offense and less force is appropriate for a less serious offense, this factor weighs in

Leach’s favor. See Lee, 284 F. 3d at 1198. Next, based on Leach’s account of the facts, he did not pose an immediate threat to the safety of the deputies or anyone else. He did not threaten the deputies, and he was watching television when they entered the residence and approached him. Thus, this factor weighs in Leach’s favor. Under the third factor, the Court must consider whether Leach actively resisted arrest or attempted to evade arrest. Allport, Clark, and Small discussed, extensively, Leach’s resistance to the arrest during their depositions, which are offered in support of the Motion for Summary Judgment. In his affidavit, Leach does not rebut this testimony. He does not refute the testimony that he clenched his fists, tightened his body, braced and twisted his body, pulled away, and refused to be handcuffed, except by stating that he told the deputies that his arm did not straighten. But this fact does not rebut the extensive deposition testimony of the deputies concerning the extent of Leach’s resistance. Thus, the undisputed facts show that Leach resisted the arrest. See Fed. R. Civ. P. 56(e)(2). To that end, some force was required because Leach was resisting arrest. See Rodriguez v. Farrell, 280 F. 3d 1341, 1351 (11th Cir. 2002) (“[W]e recognize that the typical arrest involves some force and injury.”). As for the extent of the inflicted injuries, Leach’s affidavit states only that he sustained a laceration on his elbow when Allport forced him to the floor. Leach also provides numerous medical records, although those records discuss medical conditions only generally and do not link the medical conditions to his arrest, nor does Leach argue such in his response.¹⁷ “What would ordinarily be considered reasonable force does not become excessive force when the force aggravates (however severely) a pre-existing condition the extent of which was unknown to the officer at the time.” Rodriguez, 280 F. 3d at 1353. For example, in Rodriguez, an officer grabbed the plaintiff’s arm; twisted it around the plaintiff’s back; handcuffed the plaintiff as the plaintiff fell to his knees,

screaming that the officer was hurting him; and placed the plaintiff in a patrol vehicle while the plaintiff was handcuffed. Id. at 1351. The plaintiff’s arm below the elbow was amputated as a result of the incident. Id. But the plaintiff admitted that he did not tell the officer that he had an injured arm and nothing outwardly indicated that his

“in an unventilated vehicle in the hot sun for periods of ten and thirty minutes does not violate the Fourth Amendment.” Borsella v. Parker, No. 6:11-cv-1249-JA-GJK, 2013 WL 375480, at *4 (M.D. Fla. Jan. 31, 2013) (collecting cases and finding that a deputy sheriff did not violate the Fourth Amendment when confining the plaintiff in a police car for approximately 35 minutes on a hot day with the windows up and without air-conditioning). There is no dispute that Leach was inside the “hot” patrol vehicle, with the windows up, for “almost 45 minutes” on a February evening. Doc. 95 at 2. Under Leach’s version of the facts, the vehicle’s air conditioning was turned off and Small was not inside the vehicle. But Leach does not present evidence that his time in the back of the vehicle caused injuries.¹⁸ A reasonable officer in Small’s position would not believe that leaving an individual in a “hot” patrol vehicle with the windows up and the air conditioning turned off for “almost 45 minutes” on a February evening in Sarasota, FL, would constitute excessive force.

Even assuming a constitutional violation, such violation was not “clearly established” at the time of the conduct. For determining whether a reasonable officer would know that her conduct was unconstitutional, two methods exist: if, in looking at relevant case law at the time, a concrete factual context exists to render it obvious; or if the conduct lies so obviously at the core of the conduct prohibited by the Fourth

Amendment that the unlawfulness of the conduct was readily apparent to the officer, notwithstanding the lack of fact-specific case law. Fils v. City of Aventura, 647 F. 3d 1272, 1291 (11th Cir. 2011). The Eleventh Circuit did not directly confront a “hot car” case until last year. Patel v. Lanier Cnty., 969 F. 3d 1173, 1182 (11th Cir. 2020). The Court has not found, nor has Leach cited to, any controlling precedent squarely governing the specific facts here and this type of conduct does not so obviously lie at the core of

C. Count II – Excessive Force under 42 U.S.C. § 1983 against Poinsett and Collison In Count II, Leach sues Poinsett and Collison under § 1983 for excessive use of force in violation of the Fourth and Fourteenth Amendments. See Doc. 50 ¶132. Poinsett and Collision argue that Leach cannot establish an excessive-force claim against them because the undisputed facts show that they applied no physical force to Leach. Doc. 82 at 10. They also argue that even if the undisputed facts could demonstrate a constitutional violation, Leach cannot show that they violated clearly established law. Id. at 15. The Court agrees. Leach alleges that Poinsett and Collison engaged in “another unprovoked attack” by picking him up from the floor by the chain of the handcuffs and rushing him out to the patrol vehicle. Doc. 50 ¶58. Poinsett and Collision allegedly continued to pull up on Leach’s arms while escorting him to the patrol vehicle, with the handcuffs “cut[ting] through the skin” and the “unreasonable force” creating “significant stress and strain” to Leach’s left wrist and right elbow. Id. at ¶60. Leach also alleges that Poinsett and Collison “stuffed” Leach into the back seat of the patrol vehicle, “leaving him lying on his stomach between the seat and floor,” unattended with no air conditioning and all windows closed for approximately 40 minutes. Id. at ¶63. The evidence in the record demonstrates only that Poinsett and Collison arrived to the scene after Leach’s arrest and that Collision, along with Small, escorted him to the patrol vehicle. Poinsett and Clark acted within their discretionary authority. See

Perez, 809 F. 3d at 1218; Tucker, 2012 WL 13018592, at *3. As such, Leach must show that Poinsett and Collison violated a constitutional right that was clearly established. For Poinsett, no evidence shows that Poinsett picked up Leach by the chains of the handcuffs, escorted him to the patrol vehicle, or pulled on his arms while escorting him. The evidence also does not show that Poinsett “stuffed” Leach into the back of the vehicle. The evidence shows only that Poinsett arrived to the scene after Leach’s arrest. Thus, Poinsett is entitled to qualified immunity for this claim, and the Court will enter summary judgment in favor of Poinsett on this claim. As for Collision, the evidence shows that he escorted Leach to the patrol vehicle. As mentioned in the discussion for Count I, the undisputed facts show that Leach resisted during the escort to the vehicle and that Small and Collison had to pick him up by his arms only. For the same reasons discussed above in finding that Small is entitled to qualified immunity for any force used while escorting Leach to the vehicle, Collision is entitled to qualified immunity for any force used while escorting Leach. See Nolin, 207 F. 3d at 1257. Finally, for the same reasons that Small is entitled to qualified immunity for Leach’s time in the back of the vehicle, Collision is entitled to qualified immunity for Leach’s time in the vehicle. Therefore, the Court will grant summary judgment in favor of Poinsett and

Collison on this claim. D. Count III – Excessive Force under 42 U.S.C. § 1983 against Tuggle In Count III, Leach sues Tuggle individually under § 1983 for excessive use of force in violation of his rights under the Fourth and Fourteenth Amendments. See Doc.

50 ¶144. Tuggle argues that the undisputed facts show that he applied no physical force to Leach and, even if the facts demonstrated a constitutional violation, Leach cannot show that the violation was clearly established. Doc. 82 at 10, 12. The Court will grant summary judgment in favor of Tuggle on this claim. In bringing this claim, Leach alleges that Tuggle was acting in a “supervisory capacity as a Sarasota County Deputy Sheriff.” Doc. 50 ¶143. Leach premises Tuggle’s liability on Tuggle “st[anding] by and permit[ting] the use of force . . . which was objectively unreasonable in light of the facts and circumstances confronting him and other defendants . . .” Id. at ¶146. And he premises the claim upon “Tuggle’s actions and authorization to use a taser” against Leach. Id. at ¶147. The undisputed facts show that Tuggle was a supervisor and arrived to the scene after Leach’s arrest. He responded to the scene because the deputies “asked for a supervisor to respond due to a taser deployment.” Doc. 95 at 7:10–13. He testified that his duties in this instance involved ensuring that the taser probe areas were photographed and that the appropriate paperwork was completed. Id. at 11:5–10. He sat in his patrol vehicle for most of that time, but also spoke with Allport and Clark about the incident, ensured that the taser probe picture was taken, that the proper paperwork was completed, and developed a plan for Small to transport Leach to the jail. Id. at 9:19–22, 25:23–25, 26:1–9. He also generally acknowledged responsibility for his deputies as a supervisor. Id. at 15:2–11. Because Tuggle undertook these actions in accordance with the performance of his duties and within the scope of his authority, he was acting within his discretionary authority. See Lenz, 51 F. 3d at 1545.

Thus, the burden shifts to Leach to show a clearly established constitutional violation. Tuggle correctly points out that the undisputed facts show that he did not apply any physical force to Leach. In his affidavit, Leach does not mention Tuggle. Leach apparently grounds this excessive-force claim on Tuggle’s role as supervisor. But “supervisory officials are not liable under § 1983 for the unconstitutional acts of their subordinates on the basis of respondeat superior or vicarious liability.” Harrison v. Culliver, 746 F. 3d 1288, 1298 (11th Cir. 2014) (internal quotation marks omitted). To hold Tuggle, as a supervisor, liable for a constitutional violation, Leach must show that Tuggle “either participated directly in the unconstitutional conduct or that a causal connection exists between [Tuggle’s] actions and the alleged constitutional violation.” Id. The requisite causal connection “can be established when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he fails to do so.” Id. (quoting Cottone v. Jenne, 326

F. 3d 1352, 1360 (11th Cir. 2003), abrogated in part on other grounds by Randall v. Scott, 610 F. 3d 701 (11th Cir. 2010)). “Alternatively, the causal connection may be established when a supervisor’s custom or policy . . . result[s] in deliberate indifference to the constitutional rights or when facts support an inference that the supervisor directed the subordinates to act unlawfully or knew that the subordinates would act unlawfully and failed to stop them from doing so.” Id. (alterations in original). “‘[T]he standard by which a supervisor is held liable in [his] individual capacity for the actions of a subordinate is extremely rigorous.’” Id. (alteration in original). Tuggle cannot be held liable for the actions of the deputies inside the residence on the basis of respondeat superior or vicarious liability. Further, the undisputed facts show that Tuggle did not participate in the arrest, which involved Small’s deployment of the taser. Leach also fails to show a causal connection between Tuggle’s actions and any violation of Leach’s rights under the Fourth or Fourteenth Amendments under either causal avenue. To the extent that Leach bases this claim upon force used during his escort to Small’s vehicle, Tuggle testified that Leach was already outside the house when he arrived to the scene. Doc. 95 at 10:6–8. Leach does not show Tuggle’s participation or the requisite causal connection. As for his time in Small’s vehicle, Leach highlights Tuggle’s testimony that leaving someone in the back of a patrol car with no air conditioning and the windows closed “for close to 48 minutes” would be unreasonable. Doc. 97 at 9–10. But the law determines reasonableness, not Tuggle’s opinion, and this testimony also does not establish Tuggle’s participation or the requisite causal connection.¹⁹ Referencing

Tuggle’s testimony, Leach claims that Tuggle testified that he never checked on Leach while Leach was in the back of the vehicle, despite knowing of “a taser incident and possible side effects.” Id. at 10. Even if Tuggle’s testimony is construed in this manner, this testimony does not show any participation by Tuggle or the requisite causal connection. And a review of the record does not demonstrate any evidence of such participation or causal connection. Therefore, because Leach fails to establish a constitutional violation, Tuggle is entitled to qualified immunity on this claim, and the Court will enter summary judgment in Tuggle’s favor. E. Count IV – First Amendment Retaliation under 42 U.S.C. § 1983 against Allport, Clark, Small, and Tuggle In Count IV, Leach sues Allport, Clark, Small, and Tuggle for First Amendment retaliation under § 1983. Allport, Clark, Small, and Tuggle argue that the decision to arrest Leach preceded his allegedly protected speech, thereby negating the requisite causation, and, even if the undisputed facts show a constitutional violation, Leach cannot show that the violation was clearly established. Doc. 82 at 12.

Therefore, because Allport, Clark, Small, and Tuggle are entitled to qualified immunity here, the Court will enter summary judgment in their favor on this claim. F. Count V – Malicious Prosecution under 42 U.S.C. § 1983 against Allport, Clark, Small, and Tuggle In Count V, Leach sues Allport, Clark, Small, and Tuggle under § 1983 for malicious prosecution in violation of his Fourth and Fourteenth Amendment rights. Allport, Clark, Small, and Tuggle contend that arguable probable cause existed for charging Leach “with several offenses, including felony DWLS and resisting an officer without violence.” Doc. 82 at 14. They argue that even if the undisputed facts demonstrate a constitutional violation, qualified immunity applies because Leach cannot show a violation of clearly established law. Id. at 15. The Court will enter summary judgment in favor of Allport, Clark, Small, and Tuggle on this claim.

In framing this claim, Leach contends that he had a “constitutional right to be free from malicious prosecution without probable cause under the Fourth Amendment and in violation of due process under the Fourteenth Amendment.” Doc. 50 ¶171. He alleges that Allport, Clark, Small, and Tuggle violated his “Fourth and Fourteenth Amendment rights to be free from malicious prosecution without probable cause and without due process when they worked in concert to secure false charges against him, resulting in his malicious prosecution.” Id. at ¶173. He claims that certain criminal proceedings were ultimately terminated in his favor and that the prosecutor “decline[d] one resisting charge and the other would be dismissed by the Court pursuant to the

Motion to Suppress.” Id. at ¶179. He also alleges that the prosecutor stipulated to the facts in that motion, thereby reflecting a “prosecutorial judgment that the case could not be proven beyond a reasonable doubt.” Id. at ¶179. Allport, Clark, Small, and Tuggle acted within their discretionary authority. See Lenz, 51 F. 3d at 1545. Thus, the burden shifts to Leach. The analysis proceeds under the Fourth Amendment. Rehberg, 611 F. 3d at 853 (“A malicious prosecution claim arises under the Fourth Amendment, not Fourteenth Amendment substantive due process.”). “To establish a federal malicious prosecution claim under § 1983, the plaintiff must prove a violation of his Fourth Amendment right to be free from unreasonable seizures in addition to the elements of the common law tort of malicious prosecution.” Wood v. Kesler, 323 F. 3d 872, 881 (11th Cir. 2003). The elements of the common law tort of malicious prosecution are: “(1) a criminal prosecution instituted or continued by the present defendant; (2) with malice and without probable cause; (3) that terminated in the plaintiff accused's favor; and (4) caused damage to the plaintiff accused.”²¹ Grider v. City of Auburn, 618 F. 3d 1240, 1256 (11th Cir. 2010). Here, Leach provides no evidence to support the elements of common-law malicious prosecution—he fails to demonstrate a criminal prosecution that was terminated in his favor and caused damage to him, let alone an action initiated with malice and without probable cause. A motion to suppress is attached to his complaint, but this record is the only record supplied from the state action. To be sure, Leach’s allegations reference the state action, such as his allegations transcribing a portion of the hearing on the motion to suppress and his allegations that the state court accepted

Inc., 900 F. 3d 1270, 1289 (11th Cir. 2018) (“The nonmoving party may not rest upon the mere allegations or denials of his pleading.”). Leach’s assertions in the body of his response, without supporting evidence, are also insufficient. No party has attempted to direct the Court to records of which the Court may take judicial notice, either.²² In the absence of evidence supporting this claim, Leach fails to establish a constitutional violation, and Allport, Clark, Small, and Tuggle are entitled to qualified immunity. Therefore, the Court will enter summary judgment in favor of Allport, Clark, Small, and Tuggle on this claim. G. Count VI – “Deliberate Indifference” by the Sheriff for “Policies, Practices, Customs, Training, and Supervision” In Count VI, Leach brings a claim under § 1983 for deliberate indifference against Knight for “Policies, Practices, Customs, Training, and Supervision” in violation of his Fourth and Fourteenth Amendment rights. Doc. 50 at 28. Leach premises this claim upon the “deficient training” of Clark, Allport, Small, and Tuggle, which “led to [his] false arrest.” Id. at ¶187. Leach alleges that Clark, Allport, Small, and Tuggle received deficient training because a certified driving record did not support his arrest for felony DWLS. Id. at ¶¶187–189. He alleges that the

County Sheriff, for violating Leach’s Fourth and Fourteenth Amendment rights based on a deliberate-indifference failure-to-train theory. This claim against Hoffman in his official capacity is effectively a claim against the governmental entity that Hoffman represents. See Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cnty., 402 F. 3d 1092, 1115 (11th Cir. 2005). “Because the real party in interest in an official-capacity suit is the governmental entity and not the named official, the entity’s policy or custom must have played a part in the violation of federal law [or the Constitution].” Troupe v. Sarasota Cnty., No. 8:02-cv-53-SCB-MAP, 2004

‘moving force’ behind the deprivation,” and, thus, “in an official-capacity suit, the entity’s ‘policy or custom’ must have played a part in the violation of federal law.” Kentucky v. Graham, 473 U.S. 159, 166 (1985). “[T]o impose § 1983 liability on a municipality, a plaintiff must show: (1) that his constitutional rights were violated; (2) that the municipality had a custom or policy that constituted deliberate indifference to that constitutional right; and (3) that the policy or custom caused the violation.” McDowell v. Brown, 392 F. 3d 1283, 1289 (11th Cir. 2004); see Martin v. Wood, 648 F. App’x 911, 914 (11th Cir. 2016) (reciting this rule where a plaintiff brought an officialcapacity claim against a Florida sheriff under § 1983). “In order for a plaintiff to demonstrate a policy or custom, it is generally necessary to show a persistent and widespread practice.” McDowell, 392 F. 3d at 1290.

Fourteenth Amendment rights or that such policy or custom caused a violation of those rights. He has failed to present any evidence of knowledge of a need to train or supervise or a deliberate choice not to take action. Although he cites to Policy PAT 120.06 in his response, he fails to provide a copy of that policy. Nonetheless, the assertion that Allport, Clark, Small, and Tuggle were inadequately trained in Policy

PAT 120.06 fails to show the requisite evidence of deliberate indifference. Ultimately, Leach claims that Allport, Clark, Small, and Tuggle received “deficient training” because of circumstances “call[ing] into question [his] arrest for DWLS.” Doc. 50 ¶¶ 187, 190. In the absence of any evidence of the requisite custom or policy, or that the policy or custom was a “moving force” for a constitutional violation, Hoffman is entitled to summary judgment in his favor on this claim. See Gold, 151 F. 3d at 1350 (explaining that a defendant “is not automatically liable” under § 1983 even if it inadequately trained or supervised its police officers and those officers violated [a plaintiff’s] constitutional rights”). Therefore, the Court will enter summary judgment in Hoffman’s favor on this claim. H. Count VII –“Deliberate Indifference” by the Sheriff for “Failing to Equip Deputies with Body Cam[eras]” Here, Leach brings a claim under § 1983 for deliberate indifference against Knight for “Failing to Equip Deputies with Body Cam[eras].” Doc. 50 at 30. Leach alleges that “the individual defendants” were not equipped with body cameras because “Knight said no to them.” Id. at ¶199. He claims that his constitutional rights would not have been violated if Allport, Clark, Small, Tuggle, Poinsett, and Collison had been equipped with body cameras. Id. at ¶200. Knight allegedly maintains a policy of not equipping deputies with body cameras. Id. at ¶201. Leach does not specify which constitutional rights were violated. But, as discussed above, Leach’s constitutional rights were not violated. The Court construes this claim as a claim under § 1983 against

Hoffman, in his official capacity as Sarasota County Sheriff, for an allegedly unconstitutional policy or custom.²⁵

I. Count VIII –“Deliberate Indifference” by the Sheriff’s “Training, and Supervisory Liability” In Count VIII, Leach brings a claim under § 1983 for “Deliberate Indifference by Knight’s Training, and Supervisor Liability” in violation of his Fourth and Fourteenth Amendment rights. Doc. 50 at 32. Leach alleges that Knight violated his Fourth Amendment right to be free from excessive force and his right to substantive due process under the Fourteenth Amendment when he failed to adequately train deputies “in the constitutional limitations of conducting a warrantless entry into a person’s home without consent [or] exigent circumstances.” Id. at ¶208. He claims that

Knight, as a chief policymaker, bears responsibility for training “to maintain an effective police force that is capable and prepared to deal with encounters with nonthreatening people” and that the deputies’ conduct at the scene was “contrary to established police methods for interacting with non-threatening persons.” Id. at ¶¶209– 10. And he claims that no deputies were sufficiently trained to “reasonably and effectively deal with [his] medical situation.” Id. at ¶212. As such, Leach bases this claim on Knight’s purported failure to train deputies in constitutional limitations and medical care. Therefore, like Count VI, the Court construes this claim as a claim under § 1983 against Hoffman, in his official capacity as Sarasota County Sheriff, for allegedly violating Leach’s Fourth and Fourteenth Amendment rights based on a deliberate-indifference failure-to-train theory. In seeking summary judgment here, the Sheriff replicates his argument for Counts VI and VII. Once again, Leach has failed to provide evidence of a custom or policy that constituted deliberate indifference to Fourth or Fourteenth Amendment rights or that such policy or custom caused a violation of those rights. He has again failed to present any evidence of knowledge of a need to train or supervise or a deliberate choice not to take action. Therefore, the Court will enter summary judgment in Hoffman’s favor on this claim. J. Count IX – Deliberate Indifference” by the Sheriff for “the implementation of Unconstitutional Written General Order 22.6” In Count IX, Leach brings a claim under § 1983 for “Deliberate Indifference” by Knight “for the implementation of Unconstitutional Written General Order 22.6.”

Doc. 50 at 34. Leach alleges that General Order 22.6, which allegedly is a “written policy that deals with the use of a taser,” is unconstitutional because the order gives discretion to an individual deputy to determine when to order medical assistance for a person who has been tased. Doc. 50 ¶¶217–219. The Sheriff repeats his argument for Counts VI, VII, and VIII. “A policy is a decision that is officially adopted by the municipality, or created by an official of such rank that he or she could be said to be acting on behalf of the municipality.” Sewell v. Town of Lake Hamilton, 117 F. 3d 488, 489 (11th Cir. 1997) (citing Brown v. City of Ft. Lauderdale, 923 F. 2d 1474, 1479–80 (11th Cir. 1991)). Despite alleging that the Sheriff implemented an unconstitutional order, the record lacks any evidence of General Order 22.6. The only mention of General Order 22.6 in the evidence is Tuggle’s vague reference to “General Order 22,” in which he simply acknowledges that “General Order 22” exists. Doc. 95 at 17:2–6. Although some of Leach’s allegations address the contents of General Order 22.6, there is no evidence before the Court as to the contents of General Order 22.6.26 Thus, Leach cannot establish the unconstitutionality of General Order 22.6 or any liability resulting therefrom. Therefore, the Court will enter summary judgment in favor of Hoffman on this claim.

K. Remaining State-Law Claims

Finally, Leach brings several state-law claims: a battery claim against Clark and Allport; a battery claim against Small; a battery claim against Poinsett and Collison; and a negligence claim against Knight. Doc. 50 ¶239–251. “[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to exercise jurisdiction over the remaining statelaw claims. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988). Therefore, the

IV. CONCLUSION

Accordingly, it is hereby ORDERED AND ADJUDGED:

1. Defendants’ Motion for Summary Judgment (Doc. 82) is GRANTED.
2. The Clerk is directed to enter JUDGMENT on Count I in favor of Defendants Anthony Allport, Lori Beth Clark, Karla Small and against Plaintiff James R. Leach.
3. The Clerk is directed to enter JUDGMENT on Count II in favor of

Defendants Kyle Poinsett and Kyle Collison and against Plaintiff James R. Leach. 4. The Clerk is directed to enter JUDGMENT on Count III in favor of Defendant Matt Tuggle and against Plaintiff James R. Leach. 5. The Clerk is directed to enter JUDGMENT on Counts IV and V in favor of

Defendants Anthony Allport, Lori Beth Clark, Karla Small, and Matt Tuggle and against Plaintiff James R. Leach. 6. The Clerk is directed to enter JUDGMENT on Counts VI, VI, VIII, and IX in favor of Defendant Kurt A. Hoffman and against Plaintiff James R. Leach. 7. The Court declines to exercise supplemental jurisdiction over Counts XII, XIII, XIV, and XV. Those claims are DISMISSED, without prejudice. 8. The Clerk is directed to terminate all deadlines and to CLOSE this case. DONE AND ORDERED in Tampa, Florida on March 28, 2022.

Cha ene Chwards None gl Charlene Edwards Honeywell United States District Judge Copies to: Counsel of Record and Unrepresented Parties, if any