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Lillo v. Bruhn

September 9, 2009

STEPHEN LILLO, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JOHN R. LILLO, JR., PLAINTIFF,
v.
DARRELL A. BRUHN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: M. Casey Rodgers United States District Judge

ORDER

Stephen Lillo ("Plaintiff"), in his capacity as personal representative of the estate of John R. Lillo Jr. ("Lillo"), sues Richard S. Brown, William P. Broxson, Darrell A. Bruhn, Howard R. Harran, Matthew M. Holt, Tom Matz, Robert D. Millard, Edmund K. Rossi and Donne G. Yeakos, officers with the Fort Walton Beach, Florida Police Department, under federal law for violation of Lillo's civil rights.*fn1 Specifically, plaintiff's complaint raises the following five claims, all under 42 U.S.C. § 1983: cruel and unusual punishment (Count I), excessive force (Count II), unlawful seizure (Count III), failure to intervene (Count IV) and deliberate indifference to a serious medical need (Count V). Pending are motions for summary judgment filed by these nine officers on qualified immunity grounds. For the reasons explained, the court GRANTS all motions.

Background

This case centers on events which began on January 21, 2004, and continued into the early morning of January 22, 2004, in Fort Walton Beach. On the afternoon of January 21, 2004, while on patrol, Officer Matthew Holt observed a man, who he knew as John Lillo, wandering in traffic. Another police officer at the scene with Holt spoke to Lillo to check on him, but otherwise did not detain him. A few hours later, Holt heard radio communication indicating that Lillo was again wandering into traffic, but he did not respond to the radio call.*fn2 At approximately 11:40 pm the same day, while still on patrol, Holt saw Lillo again, but this time Lillo was nude from the waist down and defecating within the view of others outside a boarding house. At this time, Holt intended to arrest Lillo for disorderly conduct*fn3 and called for assistance because he knew Lillo had attacked police officers in the past.*fn4 Brown, Broxson, Bruhn, Harran, Millard and Yeakos responded.*fn5 Brown testified that when he arrived Lillo was agitated and breathing heavily, and his face was flushed, as though he was angry. Brown was aware that Lillo had been previously involuntarily committed under Florida's Baker Act.*fn6 When Holt told the officers that Lillo had committed a crime, Harran and Millard handcuffed Lillo and placed him in the back of Harran's cruiser. However, rather than arrest Lillo for disorderly conduct, Brown, Bruhn and Holt collectively decided to transport Lillo for an involuntaryexamination under the Baker Act, based on Lillo's known psychiatric condition, his apparent lack of awareness of his surroundings, and their fear Lillo might be a danger to himself.*fn7

Harran, accompanied by Holt and Millard, transported Lillo to Bridgeway without incident.*fn8 While Harran waited with Lillo in Harran's vehicle, Holt and Millard entered Bridgeway to speak with the staff. From the beginning, Bridgeway staff was reluctant to admit Lillo.*fn9 Nonetheless, at 12:10 a.m., January 22, 2004, Bridgeway staff assessed Lillo in the back of Harran's vehicle. According to Bridgeway records, at that time, Lillo was alert and oriented, but angry, and shouted that he did not want to be at Bridgeway. At approximately 12:20 a.m., Lillo shattered the rear window of Harran's vehicle.*fn10 As a result, Harran and Holt radioed for officer assistance, and Broxson, Bruhn, Brown, Matz, Rossi and Yeakos responded to Bridgeway. The officers convinced Lillo to leave the vehicle and restrained him with leg restraints without resistance.*fn11

At approximately 12:30 am, Brown, Harran and Millard escorted Lillo, in restraints, into Bridgeway's lobby and placed him in a chair. Harran testified that Bridgeway staff told him that Lillo could not be admitted without a medical clearance. Notwithstanding the Bridgeway staff's refusal to admit Lillo, a staff member paged a physician,*fn12 who prescribed Ativan and Geodon, as needed, to control Lillo's violent behavior.*fn13 Broxson testified that Lillo tried to get up and walk out of Bridgeway, and that officers sat him back down in the chair. At that point, according to Bridgeway records and the testimony of the police officers, Lillo became agitated and struggled with police.*fn14 Brown, Harran and other officers pulled Lillo to the floor by his waist and shoulders.*fn15 Brown, Harran, Millard and Yeakos restrained Lillo on the ground by applying pressure with their hands to his shoulders and extremities. In doing so, Brown noticed Lillo had twisted and bent his handcuffs during the struggle. Concerned Lillo might injure them or himself, the officers placed additional sets of handcuffs on Lillo's wrists and connected the handcuffs to Lillo's leg restraints with a nylon rope.*fn16 The officers then placed Lillo on his side so that he could breathe. According to the officers, despite the additional restraints, Lillo alternated between struggling and periods of relative calm. At 12:40 a.m., Bridgeway staff observed and recorded that Lillo was restrained with his face down and to the side. Also, according to the records, at that time Lillo's breathing was heavy, but he was not in respiratory distress; he had an open airway; his color was pink; and his skin was warm and dry. At approximately 12:45 a.m., a Bridgeway nurse administered Ativan and Geodon to Lillo and informed the officers that the medications would take up to twenty minutes to take effect.*fn17

Bruhn departed Bridgeway once the medications were administered.

At approximately 12:50 a.m., Bridgeway staff cleaned facial injuries Lillo received during his struggles, including small lacerations, a hematoma over his left eye, and slight bruising. At approximately 1:00 a.m., Bridgeway staff called EMS to treat Lillo's facial lacerations and transport him to a hospital for medical clearance. According to Bridgeway records, at this time Lillo continued to struggle.

At approximately 1:10 a.m., Fort Walton Beach Fire Department employees Robert Bullard, the battalion chief and a paramedic, Charles George, an EMT, and Christopher Purvis ("Purvis"), also an EMT, arrived at Bridgeway.*fn18 Purvis testified Lillo was standing when he arrived, and was disruptive and violent and had to be taken down to the floor. Bullard and George testified that, when they arrived, Lillo was on the floor, thrashing around and struggling against his restraints. Bullard and George also testified Lillo struck his own head against the floor repeatedly; as a result and in an effort to prevent Lillo from injuring himself, Bullard used his hands and knees to keep Lillo's head still.*fn19

At approximately 1:15 a.m., Okaloosa County EMS employees Wally Ebbert ("Ebbert"), a paramedic, and Thearon Shipman ("Shipman"), an EMT, arrived at Bridgeway. Bullard turned over Lillo's care to Ebbert; however, Bullard, George and Purvis continued to assist Ebbert as needed. Ebbert called a physician, Dr. Comer, who authorized Ebbert to administer Haldol, an anti-psychotic medication, to Lillo intravenously, which he did at 1:30 a.m.*fn20 Ebbert testified that after he administered Haldol to Lillo, Lillo continued to struggle, then suddenly stopped breathing; no pulse was detected at approximately 1:30 a.m. Officers immediately removed Lillo's restraints, and Ebbert performed cardiopulmonary resuscitation, which restored Lillo's pulse. At approximately 1:45 a.m., EMS transported Lillo to Fort Walton Beach Medical Center, arriving ten minutes later. Lillo was pronounced dead at 2:19 a.m.

The medical examiner, Dr. Andrea Minyard, reported Lillo's cause of death as complications of acute psychosis. Her report noted multiple abrasions, lacerations and contusions of the face, scalp and extremities, as well as deep contusions of the skin and muscle of the posterior neck. Plaintiff's expert, Dr. Michael Berkland, testified that Lillo's autopsy photographs depicted "extensive deep subcutaneous hemorrhage that extends down and involves the musculature of the cervical and upper thoracic spine." Based on the injuries to Lillo's neck, and the reports of Bullard restraining Lillo's head with his hands and knees, Berkland concluded that Lillo's death was the result of asphyxia induced by compression and restraint of the neck and upper back.

Discussion

The officers move for summary judgment on qualified immunity grounds. A motion for summary judgment should be granted if there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Welding Servs., Inc. v. Forman, 509 F.3d 1351, 1356 (11th Cir. 2007). The court must avoid weighing contradictory evidence or making credibility determinations, Stewart v. Booker T. Washington Ins., 232 F.3d 844, 848 (11th Cir. 2000), and must draw all reasonable inferences in the nonmoving party's favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The court, however, cannot ignore uncontradicted evidence simply because it is unfavorable to the nonmoving party. See Fennell v. Gilstrap, 559 F.3d 1212, 1215 n.3 (11th Cir. 2009).

Qualified immunity protects municipal officers from liability under § 1983, provided their actions were within the scope of their discretionary authority and did not violate clearly established constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Lewis, 561 F.3d at 1291. An officer acts within the scope of his discretionary authority when the officer performs a legitimate jobrelated function through means within the officer's power to utilize. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265-66 (11th Cir. 2004). In deciding this question, the court looks to the general nature of the officer's actions, not to his specific conduct. Id. at 1266. If the officer was engaged in a discretionary duty, the burden shifts to the plaintiff to demonstrate the officer is not entitled to qualified immunity. See Mercado v. City of Orlando, 407 F.3d 1152, 1156 (11th Cir. 2005). To do so, the plaintiff must establish that the officer's conduct violated a constitutional right and that the right was clearly established at the time of the alleged violation. Id. The court may ...


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