Dаvid C. SKRTICH v. Timothy Alvin THORNTON, in his individual capacity, Jason Patrick Griffis, in his individual capacity, et al.
No. 00-15959
United States Court of Appeals, Eleventh Circuit
Jan. 29, 2002
280 F.3d 1295
Before BLACK and BARKETT, Circuit Judges, and HOBBS, District Judge.
Before BLACK and BARKETT, Circuit Judges, and HOBBS*, District Judge.
BARKETT, Circuit Judge:
On our own motion, we vacated the original opinion in this case, Skrtich v. Thornton, 267 F.3d 1251 (11th Cir. 2001), and now substitute the following opinion.
In this interlocutory appeal, Willie Archie, James E. Dean, Stacey L. Green, and Tony Anderson, all Florida State Corrections Officers, appeal the denial of their motion for summary judgment based on qualified immunity. David C. Skrtich sued the officers under
DISCUSSION
I. Denial of Summary Judgment to Anderson, Archie, Dean and Green.
We review de novo a district court‘s ruling on summary judgment, applying the same legal standards as the district court. See Whatley v. CNA Ins. Cos., 189 F.3d 1310, 1313 (11th Cir. 1999). Summary judgment is appropriate only when the evidence before the court demonstrates that “there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.”
As a result of his injuries, Skrtich had to be airlifted by helicopter to a hospital, where he remained for nine days and was treated for extensive injuries and spent several months recuperating. The medical records, which are not contested, reflect that Skrtich was “the victim of a significant amount of force,” which resulted in (1) left chest trauma with multiple fractures to the left ribs and left hemopneumothorax, (2) back injury with fractured multiple transverse processes, (3) right scalp laceration, (4) left shoulder and right knee injury, (5) abdominal trauma, and (6) post trauma anemia.2 The records further note that Skrtich‘s chest “[r]evealed the presence of an extensive amount of injuries with multiple abrasions and contusions and several markings of shoes on his back and left chest.”3 Dr. Victor Selyutin of Florida State Prison as well as Dr. W.F. Mathews reported “that the shoe impressions on inmate Skrtich were probably made from a stomping motion as opposed to merely holding him down.”4 Dr. Selyutin further told the Inspector General that, in his opinion, Mr. Skrtich‘s injuries were consistent with “physical abuse.”5
Under the Eighth Amendment, force is deemed legitimate in a custodial setting as long as it is applied “in a good faith effort to maintain or restore discipline [and not] maliciously and sadistically to cause harm.” Whitley v. Albers, 475 U.S. 312, 320-21, 106 S. Ct. 1078, 89 L. Ed. 2d 251 (1986) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)); see also Hudson v. McMillian, 503 U.S. 1, 8, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992). To determine if an application of force was applied maliciously and sadistically to cause harm, a variety of factors are cоnsidered including: “the need for the application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response.” Hudson, at 7-8, 112 S. Ct. 995; see also Whitley, 475 U.S. at 321, 106 S. Ct. 1078; Harris v. Chapman, 97 F.3d 499, 505 (11th Cir. 1996). From consideration of such factors, “inferences may be drawn as to whether the use of force could plausi
In this Circuit, a defense of qualified immunity is not available in cases alleging excessive force in violation of the Eighth Amendment, because the use of force “maliciously and sadistically to cause harm” is clearly established to be a violation of the Constitution by the Supreme Court decisions in Hudson and Whitley. See Johnson v. Breeden, 280 F.3d 1308 (11th Cir. 2002). There is simply no room for a qualified immunity defense when the plaintiff alleges such a violation. Id. The only question, thеn, is whether the plaintiff has alleged facts sufficient to survive a motion to dismiss or a motion for summary judgment. If he has done so, that is the end of the inquiry. Accordingly, we consider whether Skrtich‘s allegations make out a violation of his Eighth Amendment rights.
The defendants argue that force was necessary in this case because Skrtich was uncooperative and refused to comply with orders to submit to standard handcuffing procedure. They also argue that they had reason to be especially wary in their interactions with Skrtich given his “close-management status,” a status reserved for prisoners with disciplinary problems.7 Defendants argue that, given the context of Skrtich‘s history, they reasonably believed the use of force to be necessary to maintain order in the prison.
Skrtich does not challenge the officers’ use of the electronic shield, which knocked him to the ground; he concedes that some degree of force was lawful in light of his noncompliance with the officers’ order to submit to handcuffing so
We also find meritless and summarily reject appellants’ argument that a “de minimis” use of force does not support a claim of excessive force. Harris v. Chapman, 97 F.3d at 505 (citing Hudson, 503 U.S. at 7-8, 112 S. Ct. 995). Although a de minimis use of force cannot support a claim for excessive use of force, the kind of injuries Skrtich suffered, which is one factor to consider in determining the excessiveness of the force used, see Hudson, 503 U.S. at 7, 112 S. Ct. 995, included multiple rib fractures, back injuries, lacerations to the scalp, and abdominal injuries requiring hospitalization for nine days and rehabilitation for months and could hardly be the result of a de minimis application of force. Moreover, we reject the argument that the force administered by each defendant in this collective beating must be analyzed separately to determine which of the defendants’ blows, if any, used excessive force. The evidence, viewed in the light most favorable to Skrtich, is that the cell extraction team, including Archie, Dean and Green, acted in concert to administer the beating while Anderson and Thornton watched from outside the cell. Thornton at some pоint also took part in it. This beating resulted in undisputably severe injuries requiring Skrtich to be flown to a hospital. “It is not necessary that a police officer actually participate in the use of excessive force in order to be held liable under section 1983. Rather, an officer who is present at the scene and who fails to take reasonable steps to protect the victim of another officer‘s use of excessive force, can be held liable for his nonfeasance.” Fundiller v. City of Cooper City, 777 F.2d 1436, 1441-42 (11th Cir. 1985) (finding that arrestee had stated a claim for relief for unlawful use of force against officers who, instead of rendering aid to a suspect who had been shot five times by an officer, dragged suspect from his car, placed him face down on the ground, and shackled his hands behind him, exacerbating his wounds).
The undisputed evidence in this record reflected that Skrtich had been electrically shocked to render him unable to resist, and then kicked, punched and beaten. In the absence of any evidence that any force, much less the force alleged here, was necessary to maintain order or restore discipline, it is clear that Skrtich‘s Eighth Amendment rights were violated.
Having determined that the officers’ alleged beating violated Skrtich‘s Eighth Amendment rights, we conclude that no qualified immunity defense was avаilable to the officers, and therefore find that the district court did not err in denying their motion for summary judgment. Because the district court in this case undertook a separate qualified immunity analysis, however, we also note that we find no error in its reasoning. Qualified immunity protects government officials acting within their discretionary functions from liability for civil damages as long as their conduct does not violate clearly established statutory or constitutional rights that a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982); Rogers v. Miller, 57 F.3d 986, 988 (11th Cir. 1995). There is no dispute that
The question for qualified immunity analysis is whether, at the time of the incident, it was clearly established that it is unlawful to inflict a beating upon a prisoner in custody when he is incapacitated and no longer able to pose a threat to the guards’ ability to maintain order, resist the guards’ directions, or engage in disruptive behavior. We answer that question in the affirmative. By 1998, our precedent clearly established that government officials may not use gratuitous force against a prisoner who has been already subdued or, as in this case, incapacitated. See Harris v. Chapman, 97 F.3d 499, 505-06 (11th Cir. 1996); Davis v. Locke, 936 F.2d 1208, 1212-13 (11th Cir. 1991); Williams v. Cash-C.O.I., 836 F.2d 1318, 1320 (1988); Perry v. Thompson, 786 F.2d 1093 (11th Cir. 1986). These cases contained facts very similar to the facts presented in this case on the unlawful infliction of force on nonresisting prisoners.8 The circum
The defendant-officers contend that because there is no case addressing excessive force used in the context of a cell extraction, prison guards are completely insulated from federal liability for any and all excessive force used in cell extractions. The fact that the beating took place in the context of a cell extraction does nоt materially distinguish this case from our precedent. The facts, viewed in the light most favorable to Skrtich, demonstrate that Skrtich was incapacitated by the shock from the electronic shield. The argument that beating a prisoner for noncompliance with a guard‘s orders after the prisoner had ceased to disobey or resist turns the “clearly established law” of excessive force on its head and changes the purpose of qualified immunity in excessive force cases from one of protection for the legitimate use of force into a shield for clearly illegal conduct. The law of excessive force in this country is that а prisoner cannot be subjected to gratuitous or disproportionate force that has no object but to inflict pain. Whitley, 475 U.S. at 320-21, 106 S. Ct. 1078. This is so whether the prisoner is in a cell, prison yard, police car, in handcuffs on the side of the road, or in any other custodial setting.9 The use of force must stop when the need for it to maintain or restore discipline no longer exists. Id. Long before the defendants acted, the law was clearly established that correctional
The Supreme Court has made it clear in Hudson that the same standard applies to all prison excessive force claims. Any reasonable official understands the contour of this right. Hudson, 503 U.S. at 7, 112 S. Ct. 995. In this case, Skrtich claims that after he was rendered inert by the electric shock and was not resisting, indeed not capable of resisting, the officers administered a severe beating with no other purpose than the infliction of pain. The district court properly concluded that the officers who allegedly administered or failed to intervene in this beating are not entitled to qualified immunity.
II. Denial of motion to dismiss
Turning to the claims of Thornton and Griffis that the district court erred in denying their motion to dismiss on the basis of qualified immunity, we first consider Skrtich‘s argument that we need not reach the substantive question of whether his complaint can withstаnd a motion to dismiss based upon a defense of qualified immunity because the Federal Rules of Civil Procedure do not permit successive Rule 12(b)(6) motions to dismiss, and because defendants’ filing of their third motion to dismiss while the motion for summary judgment on qualified immunity was pending constituted an abuse of the court process.10
The first pleading filed by all defendants in this case was a motion to dismiss on October 4, 1999, asserting only that the plaintiff had failed to exhaust his administrative remedies. Before the court ruled, Skrtich filed a First Amended Complaint on October 25, 1999, solely to add a state law claim. All defendants then filed a second motion to dismiss, again raising the ground that the plaintiff had failed tо exhaust his administrative remedies, and adding that the court should not accept jurisdiction over the state law claim if the federal claim was dismissed. Qualified immunity was not mentioned in either the first or the second motion to dismiss. The second motion to dismiss was denied on December 16, 1999.
On January 24, 2000, all of the defendants in this case filed their answer to the Amended Complaint. The answer did not set forth any affirmative defenses and did not mention qualified immunity in any way. On April 28, 2000, two days after Skrtich was deposed, an Amended Answer for all defendants was filed that alleged for the first time the affirmative defense of qualified immunity. On June 5, 2000, all of the defendants then filed a motion for summary judgment on the basis of qualifiеd immunity. Prior to the hearing on summary judgment, however, Thornton and Griffis withdrew from the motion for summary judgment. More than one month later they filed their third motion to dismiss under
A defense of failure to state a claim upon which relief can be granted, a defense of failure to jоin a party indispensable under Rule 19, and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 7(a), or by a motion for judgment on the pleadings, or at the trial on the merits.
In this case, the motion to dismiss asserting qualified immunity was filed more than three months after the defendants’ answer had been filed and after two prior motions to dismiss, both of which had omitted this defense and both of which had been denied. The question is whether, under these circumstances, qualified immunity can be asserted in this fashion.
In Guzman-Rivera v. Rivera-Cruz, 98 F.3d 664 (1996), the First Circuit was similarly confronted with an untimely defense of qualified immunity. The defendant in Guzman-Rivera waited until far into the litigatiоn to assert the defense in its third motion for summary judgment. The court then concluded that “the defense of qualified immunity [has] been waived for the current stage of the litigation: the defense has been available to defendants since early in the litigation and, as the district court correctly found, the plaintiff has been prejudiced by the defendants’ intentional strategy of delay.” Id. at 669. The potential for abusive delays or manipulative uses of qualified immunity claims is clear, as a defendant can raise the defense at various stages of litigation and a denial of the defense at any of these stages generally entitles a defendant to an immediate aрpeal. English v. Dyke, 23 F.3d 1086, 1089 (6th Cir. 1994). Defendants who abuse the pretrial process through such stalling, however, may waive their right to raise the defense at the pretrial stage. Id.; see also Guzman-Rivera, 98 F.3d at 667-68; Apostol v. Gallion, 870 F.2d 1335, 1339 (1989) (defendants may waive or forfeit their right not to be tried if they use claims of immunity in a manipulative fashion). The result of
Under the circumstances in this case, we find that Thornton and Griffis’ third motion to dismiss was improper and should have been dismissed by the district court.13 For the foregoing reasons, the district court‘s denial of the motion for summary judgement and motion to dismiss is
AFFIRMED.
BLACK, Circuit Judge, concurring:
This case involves a claim of excessive force inflicted upon a prisoner who refused to comply with mandatory procedures for prison cell searches. The prisoner, Appellee David C. Skrtich, was incarcerated at Florida State Prison, X-Wing, which houses capital offenders and inmates who are severe discipline problems. Appellеe met the latter of these categories.
At the time of the alleged excessive force, Appellee was serving a life sentence for aggravated sexual battery on a woman who was seven months pregnant. Appellee also was serving an additional fifteen-year sentence for repeatedly stabbing a prison guard in the chest with an ice pick, while being escorted by the guard to the shower. In the past five years, Appellee had over eighty disciplinary reports, more than half of which involved threatening or attacking prison staff. Due to disruptive behavior, Appellee was placed on close manаgement status.
On January 13, 1998, correctional officers approached Appellee‘s cell to perform a routine cell search. Similar cell searches were conducted approximately three times per week. In accordance with prison procedures, the officers ordered Appellee to allow himself to be handcuffed so that he could be removed from the cell. When Appellee refused, standard policy mandated the use of a cell extraction team. Appellee was familiar with the cell extraction
Upon entering the cell, Griffis used an electronic shield to subdue Appellee. The electric shock knocked Appellee to the floor. Appellee‘s complaint and deposition are somewhat muddled and inconsistent as to the ensuing events. Appellee‘s general allegations are that individual guards went well beyond the force necessary to subdue him and extract him from his cell. Viewing the fаcts in the light most favorable to Appellee, as is appropriate at this stage of the litigation, Appellants are not entitled to qualified immunity. Therefore the result is correct. The opinion, however, contains dicta that is not consistent with my understanding of the law, so I must join in the result and not the opinion.
*Honorable Truman M. Hobbs, U.S. District Judge for the Middle District of Alabama, sitting by designation.Notes
In Harris, a prisoner who refused to voluntarily submit to a haircut was forcibly removed from his cell and restrained while officers attempted to cut his hair. He resisted and threatened to kill the barber. The evidence showed that the officers as a group kicked and beat the inmate, and that the sixth officer specifically snapped his head back with a towel, slapped him in the face, and harassed him with several racial epithets and other taunts, causing injuries to his back. We reversed the district court‘s grant of judgment as a matter of law in favor of the officer, finding that the evidence supported the jury finding that the sixth officer‘s conduct constituted an “unnecessary and wanton infliction of pain” in violation of the Eighth Amendment and the jury‘s award of punitive damages against the sixth officer. 97 F.3d at 505-06.
In Davis, an inmate, after attempting to escape, was recaptured and confined in a dog cage in the back of a truck with his hands shackled behind his back. He was then grabbed by his ankles and pulled from the cage and in the process landed on his head because his hands were shackled behind his back, causing him to suffer severe psychological injuries. The jury awarded punitive damages against the correctional officers. This Court affirmed, finding that where the inmate had been recaptured after his escape and confined in a dog cage with his hands shackled behind his back, the ongoing violation of escape had been terminated and a jury could reasonably conclude that he posed no continuing threat to the guards. 936 F.2d at 1213 (“[T]he law of this circuit prohibited the unjustified use of excessive force by a prison guard against an inmate. The evidence supports a conclusion that Davis posed no continuing threat to [the officers] after he was recaptured....“) (citations omitted).
In Williams, a prisoner refused to comply with a prison guard‘s order to return to his cell. The prisoner alleged that after he was subdued, the prison guard purposely broke his arm. The defendants presented evidence that the prisoner‘s arm was broken during the struggle to return the prisoner to his cell. This Court held that summary judgment was not appropriate where the prisoner alleged that the guard purposely broke his arm after he had ceased to resist. 836 F.2d at 1320.
Finally, in Perry, a prisoner alleged that prison guards took him to a prison barber shop to have him shaved with a razor, that he was in waist chains and his hands were cuffed in front of him, and that the prison officers struck him in the face, head, shoulder, arms and legs and that while he was down on the floor they kicked him in the sides, ribs, back and head. The officers presented evidence that the prisoner had been shaved with a clipper without incident and that prisoner‘s medical records showed no complaint of injury on the day of the alleged beating. The district court dismissed the plaintiff‘s Section 1983 claim and granted summary judgment in favor of the officers. This Court reversed, finding a “square, head-on dispute of material facts.” 786 F.2d at 1095.
(b) ... Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the рleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted.