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Prosper v. Martin

United States District Court, S.D. Florida

July 1, 2019

EDELINE JULMISSE PROSPER, Plaintiff,
v.
ANTHONY MARTIN, Defendant.

          ORDER

          CECILIA M. ALTONAGA UNITED STATES DISTRICT JUDGE.

         THIS CAUSE came before the Court on Defendant, Anthony Martin's Motion for Final Summary Judgment [ECF No. 102]. Plaintiff, Edeline Julmisse Prosper, filed a Response [ECF No. 117]; to which Defendant filed a Reply [ECF No. 141].[1] The Court has carefully considered the Third Amended Complaint [ECF No. 60] (“TAC”), the parties' submissions, the record, and applicable law.

         I. BACKGROUND

         This case arises out of a fatal encounter on September 28, 2015, between Junior Prosper (“Prosper”) and Defendant, Miami-Dade police officer Anthony Martin. (See TAC ¶ 3). Plaintiff, Edeline Julmisse Prosper, was Prosper's wife and is the personal representative of his estate. (See Id. ¶¶ 3-4).

         The incident began when William Devy, a bus driver, witnessed a taxi cab colliding with a street sign near the on-ramp to I-95. (See Def.'s Facts ¶¶ 2-3).[2] Devy stopped to assist and approached the taxi, which was still running with its lights on. (See id. ¶ 4). Devy saw Prosper sitting in the driver's seat, slumped toward the passenger side of the car and breathing heavily. (See id. ¶ 5). Devy called 911 and informed the operator of the accident. (See Id. ¶ 7). While Devy was speaking with the 911 operator, Prosper moved across the front seat of the car, exited through the passenger door, and began walking toward I-95. (See Id. ¶ 10).

         Raul Sandoval, a tow truck operator, passed Devy on the side of the road and pulled over to offer assistance. (See Id. ¶ 18). Soon after, Defendant arrived on the scene, rolled down his window, and spoke with Devy and Sandoval. (See id. ¶¶ 27-28). Devy and Sandoval told Defendant they believed Prosper “was on something” and was “acting weird.” (Id. ¶ 28; Martin Dep. [ECF No. 103-8] 46:11-18). They also informed Defendant that Prosper had jumped out of the passenger side of the taxi and was running up the ramp toward I-95. (Id. ¶ 29; Martin Dep. 46:11-18). Defendant proceeded onto the ramp in pursuit of Prosper with his emergency lights flashing. (See Def.'s Facts ¶ 33).

         As Defendant approached Prosper, Defendant issued several commands through his patrol car speaker, which Prosper ignored. (See Id. ¶ 34; Martin Dep. 49:15-50:4).[3] Prosper appeared - at a minimum - to be disoriented and stumbling as he walked within a few feet of I-95. (See Pl.'s Add'l Facts ¶ 114; Def.'s Facts ¶ 35). Defendant, having been told by Devy and Sandoval they thought Prosper was “on something, ” and having observed Prosper's unusual gait, suspected Prosper was under the influence of drugs. (See Def.'s Facts ¶¶ 35-36). Because it appeared Prosper was about to walk into traffic, Defendant exited his patrol car and tried to redirect Prosper away from the highway. (See Id. ¶ 39). In recounting the events that took place after Defendant exited his vehicle, Plaintiff relies on a surveillance recording from a nearby building, provided by Biscayne Air Conditioning, Inc. [ECF No. 105] (the “Biscayne Air Video”). The Biscayne Air Video represents Plaintiff's primary source of evidence in this action.

         The parties disagree on several points about the ensuing interaction between Defendant and Prosper. Defendant claims he tried to redirect Prosper, for his safety, away from the highway by placing his hand on Prosper's shoulder. (See Def.'s Facts ¶ 39).[4] Defendant states Prosper then struck him, and he struck Prosper back. (See Id. ¶ 42, 46). Defendant states this physical struggle caused the parties to fall down an embankment on the side of the road. (See Id. ¶ 47). According to Plaintiff, no punches were thrown and the parties simply “lost their balance and fell into the bushes along the embankment . . . .” (Pl.'s Reply Facts ¶¶ 42-47 (citing Biscayne Air Video)). Defendant states after this initial altercation occurred, Defendant intended to arrest Prosper and take him into custody. (See Def.'s Facts ¶ 44).[5]

         Once Defendant regained his footing, he took out his Taser, which had an attached light. (See Id. ¶ 49). According to Defendant, Prosper appeared disoriented and aggressive, while refusing verbal commands. (See id. ¶¶ 48-50). Because Prosper was moving toward Defendant, Defendant discharged the Taser, and Prosper fell down the embankment. (See id. ¶¶ 51-52). Plaintiff denies this version of events. Relying solely on the Biscayne Air Video, Plaintiff states Defendant got up after losing his balance and discharged the Taser at Prosper, who remained lying on the ground. (See Pl.'s Add'l Facts ¶¶ 139-142).

         After the initial Taser discharge, Defendant lost sight of Prosper, but could hear him trying to escape through the vegetation. (See Def.'s Facts ¶ 53).[6] Sandoval, who had followed the parties onto the ramp to provide assistance, heard Defendant telling Prosper to “[s]top, ” “[d]on't move, ” and “[c]ome back.” (Sandoval Dep. 188:7-11 (alterations added); Def.'s Facts ¶¶ 77-78). At this point, Defendant deployed the Taser a second time to prevent Prosper from escaping. (See Pl.'s Add'l Facts ¶ 144). Defendant then moved along the embankment and called dispatch to report that Prosper was trying to escape. (See Def.'s Facts ¶¶ 54-55).[7]

         Defendant saw Prosper moving away from him through the vegetation, and Defendant proceeded down the embankment after him. (See id. ¶ 56; see Resp. 3). Defendant caught up to Prosper, who had tripped over vegetation and was on the ground. (See Def.'s Facts ¶ 57; Pl.'s Add'l Facts ¶ 149). Defendant was standing on higher ground, slightly above Prosper, who was facing Defendant. (See Def.'s Facts ¶ 80). Prosper ignored Defendant's verbal orders to stop moving and to stay on the ground. (See Id. ¶ 78; Sandoval Statement [ECF No. 103-6] 33:15-17).[8]

         At this point in the altercation, Defendant had neither reached for nor taken out his firearm. (See Def.'s Facts ¶ 58).[9] Defendant attempted to arrest Prosper by using his Taser to dry stun him. (See id. ¶ 59).[10] According to both Defendant and Sandoval, Prosper lunged at Defendant, pulling him down onto the ground. (See id. ¶ 61; Sandoval Statement 21:2-24). Plaintiff disputes this fact, arguing the Biscayne Air Video could be interpreted to show Defendant tackling Prosper. (See Pl.'s Reply Facts ¶ 61).

         During this struggle on the ground, Defendant and Prosper moved down the embankment and out of Sandoval's sight. (See Def.'s Facts ¶ 83; Pl.'s Reply Facts ¶ 83). Sandoval then repositioned his truck to shine its headlights on the area where Defendant and Prosper were seen falling. (See id.). Sandoval exited his truck and walked toward the embankment. (See id.). Several seconds after exiting his vehicle, Sandoval heard gunshots but was unable to see who had fired the weapon. (See Def.'s Facts ¶ 84; Pl.'s Reply Facts ¶ 84).

         According to Defendant, during the final altercation with Prosper, he was in excruciating pain as Prosper bit down on his finger while twisting his head left and right. (See Def.'s Facts ¶¶ 62-63). Defendant claims his finger began to go numb and he feared Prosper might sever his finger entirely. (See id. ¶¶ 65-66). Fearing for his life and suffering great bodily harm, Defendant unholstered his firearm and discharged it, shooting Prosper in an attempt to free his hand from Prosper's mouth. (See id. ¶ 67). Instead of releasing Defendant's finger, Prosper bit down harder. (See id. ¶ 68). As Prosper continued to bite down on Defendant's finger, Defendant discharged his firearm a second time. (See id.). Prosper did not release Defendant's finger, and Defendant discharged his firearm a third time, at which point Prosper finally released Defendant's finger. (See id. ¶ 69).

         Plaintiff denies these facts. (See Pl.'s Reply Facts ¶¶ 62-69). Plaintiff submits an alternate version of the incident, stating that after Defendant tackled Prosper, Defendant punched Prosper in the face multiple times, causing him to bleed from the mouth. (See Pl.'s Add'l Facts ¶ 156). Plaintiff does not seem to deny a bite occurred, but rather Plaintiff disputes how the bite occurred.[11] Plaintiff speculates as Defendant was above Prosper and in the process of punching him, Defendant's finger became lodged in Prosper's mouth. (See id. ¶¶ 157-158).[12] Defendant then unholstered his firearm and shot Prosper multiple times. (See id. ¶¶ 159-160).

         Prosper died as a result of the gunshot wounds. (See Id. ¶ 161). Defendant proceeded up the embankment toward I-95 and immediately called dispatch, reported shots fired, and requested dispatch send fire rescue. (See Def.'s Facts ¶ 70). Defendant reported to dispatch Prosper had tried to bite his finger off. (See Id. ¶ 71). Sandoval saw Defendant bleeding from his hand. (See Id. ¶ 72; Sandoval Dep. 194:11-12).

         Defendant was taken to Jackson Memorial Hospital for treatment. (See Def.'s Facts ¶ 89). Special Agent John A. Subic of the Florida Department of Law Enforcement photographed Defendant in the hospital and reported Defendant was seen with his uniform on, numerous sand spurs on his pants and shirt, a bandaged index finger, blood on his shirt and arm, and a swollen face. (See id. ¶ 90).[13] Defendant suffered three separate injury patterns on the top of his finger and one below the finger. (See id. ¶ 92). The Jackson Memorial Medical Record notes Defendant “was bit on his left index finger over the PIP joint today by another human . . . . The wounds appear to be superficial.” (First Jackson Medical Record [ECF No. 131-3] 39).

         The bite on Defendant's finger caused tissue displacement - consistent with head movement by the person biting. (See Def.'s Facts ¶¶ 94-95).[14] Although the bite on Defendant's finger was described as “superficial at skin level only” (Pl.'s Add'l Facts ¶ 165), the bite is consistent with causing pain (see Briggle Dep. 66:7-20) and could have caused temporary numbness (see id. 72:16-20). On October 22, 2015, Defendant was cleared to return to work full duty and no functional limitations were identified. (See Pl.'s Add'l Facts ¶ 170).

         The TAC states one claim under 42 U.S.C. section 1983 for excessive force and deprivation of life. (See generally TAC). Plaintiff contends Defendant's uses of his Taser and firearm, respectively, were excessive.[15] (See id.). Regarding the instant Motion, Plaintiff insists her challenges to Defendant's credibility as well as ambiguities in the video evidence create triable questions of fact precluding summary judgment. (See Resp. 7-8).

         Defendant argues Plaintiff “cannot simply manufacture a genuine dispute by seeking to establish an alternative version of events” based upon “unsupported allegations and her speculative interpretation of a grainy video.” (Reply 2). Defendant further contends Plaintiff cannot overcome summary judgment on the basis of a credibility challenge without offering evidence to contradict the material facts. (See id. (citation omitted)). Defendant seeks entry of final summary judgment, arguing he is entitled to qualified immunity as to all allegations in the TAC. (See generally Mot.).

         II. LEGAL STANDARDS

         A. Summary Judgment

         Summary judgment is rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a), (c). An issue of fact is “material” if it might affect the outcome of the case under the governing law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). It is “genuine” if the evidence could lead a reasonable jury to find for the non-moving party. See id.; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         At summary judgment, the moving party has the burden of proving the absence of a genuine issue of material fact, and all factual inferences are drawn in favor of the non-moving party. See Allen v. Tyson Foods Inc., 121 F.3d 642, 646 (11th Cir. 1997). Courts must consider the entire record and not just the evidence singled out by the parties. See Clinkscales v. Chevron U.S.A., Inc., 831 F.2d 1565, 1570 (11th Cir. 1987). The non-moving party's presentation of a “mere existence of a scintilla of evidence” in support of its position is insufficient to overcome summary judgment. Anderson, 477 U.S. at 252.

         If there are any factual issues, summary judgment must be denied and the case proceeds to trial. See Whelan v. Royal Caribbean Cruises Ltd., No. 1:12-CV-22481, 2013 WL 5583970, at *2 (S.D. Fla. Aug. 14, 2013) (citing Envtl. Def. Fund v. Marsh, 651 F.2d 983, 991 (5th Cir. 1981)). Even when the parties “agree on the basic facts, but disagree about the inferences that should be drawn from these facts[, ]” summary judgment “may be inappropriate.” Id. (alteration added; citation omitted). “If reasonable minds might differ on the inferences arising from undisputed facts, then . . . [c]ourt[s] should deny summary judgment.” Id. (alterations added; citations omitted). Additionally, courts cannot weigh conflicting evidence. See Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1140 (11th Cir. 2007) (quoting Carlin Commc'n, Inc. v. S. Bell Tel. & Tel. Co., 802 F.2d 1352, 1356 (11th Cir. 1986)).

         B. Qualified Immunity

         The defense of qualified immunity raised in response to the claim in Plaintiff's TAC alters the summary judgment analysis somewhat. Qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights.” Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009) (internal quotation marks omitted) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). It “balances two important interests - the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009).

         To be entitled to the qualified immunity defense, a government official must demonstrate “he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.” Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991) (internal quotation marks and citations omitted). When a defendant acts within the scope of his discretionary authority, the burden “shifts to the plaintiff to show that qualified immunity is not appropriate.”[16] Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (citation omitted). The plaintiff can show qualified immunity is not appropriate by establishing (1) the defendant's conduct violated his or her constitutional rights; and (2) the constitutional violation was clearly established at the time. See Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2010) (internal quotation marks and citations omitted). These two requirements may be addressed in any order. See id. (citing Pearson, 555 U.S. at 236).

         The plaintiff “bear[s] the burden of showing that the federal rights allegedly violated were clearly established.” Foy v. Holston, 94 F.3d 1528, 1532 (11th Cir. 1996) (alteration added; citations omitted). To satisfy the “clearly established” requirement, a law may not be “defined ‘at a high level of generality, '” and the “clearly established law must be ‘particularized' to the facts of the case.” White v. Pauly, 137 S.Ct. 548, 552 (2017) (citations omitted). Although the Supreme Court “do[es] not require a case directly on point, . . . existing precedent must have placed the statutory or constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2007) (citations omitted; alterations added).

         There are three ways a plaintiff may show a right was clearly established: “(1) case law with indistinguishable facts clearly establishing the constitutional right; (2) a broad statement of principle within the Constitution, statute, or case law that clearly establishes a constitutional right; or (3) conduct so egregious that a constitutional right was clearly violated, even in the total absence of case law.” Perez v. Suszczynski, 809 F.3d 1213, 1222 (11th Cir. 2016) (internal quotation marks and citation omitted). If case law is used, only decisions of the Supreme Court, Eleventh Circuit, and highest relevant state court can clearly establish the law for qualified immunity purposes. See McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir. 2007) (citing Marsh v. Butler Cty., Ala., 268 F.3d 1014, 1032 n.10 (11th Cir. 2001)).

         In addressing the qualified immunity defense at summary judgment, “[a]ll issues of material fact are resolved in favor of the plaintiff, and then, under that version of the facts, the legal question of whether the defendant is entitled to qualified immunity is determined.” Sparks v. Ingle, 724 Fed.Appx. 692, 693 (11th Cir. 2018) (alteration added; citation omitted). Applying the plaintiff's “best case, ” “the court is able to move to the question of whether the defendant committed the constitutional violation alleged in the complaint without having to assess any facts in dispute.” Id. (internal quotation marks and citation omitted).

         III. ANALYSIS

         The Court addresses Plaintiff's arguments regarding the Biscayne Air Video and Defendant's credibility, and then turns to the merits of qualified immunity as to both the use of non-lethal and lethal force.

         A. Ambiguities in the Biscayne Air Video and ...


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