United States District Court, S.D. Florida
CECILIA M. ALTONAGA UNITED STATES DISTRICT JUDGE.
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]. The Court has carefully considered the
Third Amended Complaint [ECF No. 60] (“TAC”), the
parties' submissions, the record, and applicable law.
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).
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). 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).
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).
Defendant approached Prosper, Defendant issued several
commands through his patrol car speaker, which Prosper
ignored. (See Id. ¶ 34; Martin Dep.
49:15-50:4). 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.
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). 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).
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).
the initial Taser discharge, Defendant lost sight of Prosper,
but could hear him trying to escape through the vegetation.
(See Def.'s Facts ¶ 53). 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 ¶¶
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).
point in the altercation, Defendant had neither reached for
nor taken out his firearm. (See Def.'s Facts
¶ 58). Defendant attempted to arrest Prosper by
using his Taser to dry stun him. (See id. ¶
59). 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).
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).
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).
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. 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). Defendant
then unholstered his firearm and shot Prosper multiple times.
(See id. ¶¶ 159-160).
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).
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). 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).
bite on Defendant's finger caused tissue displacement -
consistent with head movement by the person biting.
(See Def.'s Facts ¶¶
94-95). 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).
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. (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).
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.).
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).
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.
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)).
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).
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.” 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).
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;
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)).
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
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.
Ambiguities in the Biscayne Air Video and ...