Jane Doe 1 v. Miami-Dade Co. Police Dept.
280 F. App'x 823
11th Cir.
2008
Check Treatment
Docket

UNITED STATES of America, Plaintiff-Appellee, v. Percy Jermaine WILLIAMS, Defendant-Appellant.

No. 07-14736

United States Court of Appeals, Eleventh Circuit.

June 2, 2008.

823

Non-Argument Calendar.

to withdraw is GRANTED, and Williams‘s conviction and sentence are AFFIRMED.

Spiro T. Kypreos, Pensacola, FL, for Defendant-Appellant.

Lennard B. Register, III, U.S. Attorney‘s Office, Pensacola, FL, E. Bryan Wilson, Tallahassee, FL, for Plaintiff-Appellee.

Before DUBINA, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

Spiro Theodore Kypreos, appointed counsel for Percy Jermaine Williams in this appeal, has moved to withdraw from further representation of the appellant and has filed a brief pursuant to . Our independent review of the entire record reveals that counsel‘s assessment of the relative merit of the appeal is correct. Because independent examination of the record reveals no arguable issues of merit, counsel‘s motion

Sharon MORETTA, as guardian of Isiah Allen, a minor, Plaintiff-Appellee, v. Maria ABBOTT, Miami-Dade County Police Officer, in her individual and official capacity, Yolanda Rivera, Miami-Dade County Police Officer, in her individual and official capacity, Defendants-Appellants.

No. 07-10795.

United States Court of Appeals, Eleventh Circuit.

June 2, 2008.

Spiro T. Kypreos, Pensacola, FL, for Defendant-Appellant.

Lennard B. Register, III, U.S. Attorney‘s Office, Pensacola, FL, E. Bryan Wilson, Tallahassee, FL, for Plaintiff-Appellee.

Before DUBINA, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

court, his claim that the cumulative prejudicial effect of the many serious errors committed at trial requires reversal is meritless.

plaint asserting an excessive force claim pursuant to § 1983. We have appellate jurisdiction of this interlocutory appeal.1 We conclude that the district court did not err in denying the officers’ motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). We conclude that the district court correctly determined that plaintiffs have alleged excessive force that violates clearly established constitutional rights of Allen.

The complaint filed on behalf of Allen, a minor, alleged that the two officers shot Allen with a taser gun causing 50,000 volts of electricity to enter the body of Allen, a 6-year old, 53-pound child. Allen convulsed violently and vomited as his body was shocked with the 50,000 volts. The officers handcuffed Allen as he vomited. The complaint also alleged that the tasering caused severe, significant and permanent injury to Allen, including extreme mental and physical suffering and loss of bodily function, and has resulted in large doctors and hospital bills.

The other circumstances surrounding the taser incident are alleged to be as follows. Allen was removed from his classroom to the assistant principal‘s office for discipline after having been disruptive in class, and while locked in the office he broke a picture frame in frustration. School officials then called the police. In response to the 911 call, Officers Abbott and Rivera arrived at Allen‘s elementary school. They found Allen standing motionless and passive in the corner of the assistant principal‘s office. Allen at the

Craig Edward Leen, Miami-Dade County Attorneys Office, Miami, FL, David S. Gordon, High Stack Gordon & Kronick, Melbourne, FL, for Plaintiff-Appellee.

Oren Rosenthal, Dade County Attorney‘s Office, Miami, FL, Defendants-Appellants.

Before ANDERSON, HULL and SILER,* Circuit Judges.

PER CURIAM:

Officers Abbott and Rivera (the “officers“) file this interlocutory appeal from the district court‘s denial of their motion to dismiss plaintiff‘s second amended com-time was a 6-year old child, in the first grade, standing 3 feet 5 inches tall, and weighing 53 pounds. He had a one-half inch piece of glass (from the broken picture frame) in his left hand. The district court made note of the following allegations of fact: that Allen “remained totally motionless and frightened while being confronted by the police officers,” that one officer kneeled in front of him and that the other officer later sat in a chair directly in front of him, both in a non-defensive posture, and finally that just prior to the tasering, one officer positioned herself within one foot of the child. On the basis of the foregoing allegations of specific fact, the district court perceived reasonable inferences from the complaint that Allen had not threatened to harm himself with the very small piece of glass in his hand, nor made any confrontational gestures, nor reacted in an aggressive manner. District Court Order at 13-14. In other words, the district court concluded that the reasonable inferences from the complaint were that: “[F]rom the moment the police officers arrived on the scene, through the time the officers deployed a taser into Allen‘s body and handcuffed him, Allen posed no threat to anyone‘s safety, including himself.”2 Id. at 18-19.

In this interlocutory appeal, we take as a given the facts assumed by the district court. In the Rule 12(b)(6) posture of this case, the district court properly assumed all reasonable inferences in favor of plaintiff from the allegations of the complaint. On these alleged facts and in this Rule 12(b)(6) posture, we agree with the district court that plaintiffs have alleged excessive force that violated the constitutional rights of Allen,3 and we agree with the district court that the officers are not entitled to qualified immunity because their conduct violated the clearly established rights of Allen. Even in the absence of factually similar case law, an officer can have fair warning that his conduct is unconstitutional when the constitutional violation is obvious, sometimes referred to as “obvious clarity” cases. See ; . We conclude that, at the time of this incident in August of 2003, every reasonable officer would have known that the taser force used under these circumstances was unlawful. The conduct at issue here lies so obviously at the very core of what the Fourth Amendment prohibits, that the unlawfulness of the conduct was readily apparent to an official in the shoes of these officers. ; ; .

Accordingly, the judgment of the district court is

AFFIRMED.

Notes

1
Officer Rivera (but not Officer Abbott) also moved in the district court to dismiss plaintiff‘s state law claim against her for assault and battery, claiming that she is entitled to official immunity under Florida law. The district court denied Rivera‘s motion, and she now appeals. We have no appellate jurisdiction of Rivera‘s interlocutory appeal of Florida‘s state law official immunity. ; ; ; but see (dicta indicating that Florida‘s official immunity is immunity from suit). We also decline to exercise pendent appellate jurisdiction.
2
The complaint also expressly draws the same inference: that Allen was “posing no threat to himself or others.” Second Amended Complaint, ¶ 39.
3
The officers did not dispute the violation of Allen‘s constitutional rights, either in the district court or on appeal.
*
Honorable Eugene Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by designation.