United States District Court, S.D. Florida
ORDER GRANTING DEFENDANT CITY OF BOYNTON BEACH'S
MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT
OFFICERS' MOTION FOR SUMMARY JUDGMENT
L. ROSENBERG UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendant City of Boynton
Beach's Motion for Summary Judgment [DE 78] and the
Motion for Summary Judgment of Defendant Officers Janelle
Jumelles, John Dunlop, Even Esteves, and Peter Zampini [DE
80]. The Court has carefully reviewed the Motions, Plaintiff
Dr. Harvey Garber's Responses thereto [DE 86 and 88],
Defendants' Replies [DE 93 and 96], the arguments of the
parties during the hearing held on June 4, 2019, and the
entire record, and is otherwise fully advised in the
reasons set forth below, the City's Motion for Summary
Judgment [DE 78] is granted. The Motion for Summary Judgment
of Officers Jumelles, Dunlop, Esteves, and Zampini [DE 80] is
5, 2017, Officers Jumelles and Esteves responded to a
critical-life-support call for a residence in Boynton Beach.
DE 81 at 1; DE 87 at 1. They entered the residence, were
directed to an upstairs bathroom, and discovered a deceased
female in the bathtub and drug paraphernalia nearby. DE 81 at
1-2; DE 87 at 1. The bathroom became an active crime scene.
DE 81 at 2; DE 87 at 1.
Garber, the decedent's father, arrived at the residence,
was met by Officer Dunlop, entered the residence, and went
upstairs. DE 81 at 2-3; DE 87 at 1-2. Officer Dunlop told him
not to step into the bathroom. DE 81 at 3; DE 87 at 2. Dr.
Garber nevertheless stepped into the bathroom, and Officers
Jumelles, Esteves, and Dunlop physically pulled him out of
the bathroom while Dr. Garber stated “take your hands
off me” and acknowledged that he knew that it was a
crime scene. DE 81-3 at 19:48-20:07. Officer Dunlop explained
to Dr. Garber that he would be allowed into the bathroom
after the scene was processed. Id. at 20:08-:23.
Officer Dunlop permitted Dr. Garber to look into the bathroom
without stepping inside after Dr. Garber stated he would not
go into the bathroom. Id. at 20:32-21:05. Dr. Garber
then sat on the floor immediately outside of the bathroom for
several minutes, at times covering his face with his hands or
making telephone calls. Id. at 21:05-26:49.
crime scene investigators arrived at the residence, Officer
Jumelles asked Dr. Garber to move to a couch in another area.
Id. at 26:33-:52. Dr. Garber stood up from the floor
but insisted on standing in the hallway outside of the
bathroom, stating “I'd rather have this space than
you have this space.” Id. at 26:48-27:08. Dr.
Garber stood in the hallway for several minutes, during which
time he occasionally looked into the bathroom and officers
obtained information from him. Id. at 27:08-31:23.
Officer Zampini arrived on the scene. Id. at 27:28.
Garber eventually moved toward another room and answered a
telephone call. Id. at 31:23-:27. Officer Dunlop
asked him not to go into the room because it needed to be
processed. Id. at 31:24-:28. Officer Zampini asked
Dr. Garber to move further down the hallway. Id. at
31:28-:30. Dr. Garber began to move down the hallway, and
Officer Jumelles placed her hand on Dr. Garber's back.
Id. at 31:30-:33; DE 89-2 at 29:18-:22. Officer
Jumelles would later testify that she placed her hand
“softly on his back, no pressure, ” DE 81-1 at
64, while Dr. Garber would testify that she “gave [him]
a shove” and that it “seemed like she pushed me,
” DE 81-12 at 97. Dr. Garber stated “don't
push me” and turned toward Officer Jumelles. DE 81-3 at
31:34-:35; DE 89-2 at 29:22-:24. Officer Jumelles testified
that Dr. Garber “took an aggressive stance.” DE
81-1 at 64. Officer Jumelles took her hand off of Dr.
Garber's back, took a step backward, and said
“okay.” DE 81-3 at 31:35-36; DE 89-2 at 29:24-26.
Zampini directed Dr. Garber to “go, ” and Dr.
Garber turned toward him and responded “shut up.”
DE 81-3 at 31:35-:38; DE 89-2 at 29:24-26. Officer Zampini
would later testify that Dr. Garber was “right in front
of” him, that he “could see that [Dr. Garber] was
tensing, ” and that Dr. Garber was “acting
irrational, ” was “dug in, ” and
“wasn't moving.” DE 81-9 at 30.
Zampini placed a hand on Dr. Garber's upper arm. DE 89-2
at 29:26-:27. At that point, a struggle between Dr. Garber
and several of the officers began as they moved down the
hallway, during which Dr. Garber cried “you assaulted
me” and “I'll be pressing charges against
you” and Officer Zampini instructed him to “have
a seat on the couch.” DE 81-3 at 31:38-:59; DE 89-2 at
29:27-:48. According to Dr. Garber and a resident of the home
who was present at the time, Dr. Garber did not resist being
moved down the hallway. DE 81-12 at 133; DE 87-1 at 22-23.
Officer Esteves testified that Dr. Garber was resisting and
was pushing away from officers, DE 81-4 at 52, and answered
in response to interrogatories that he believed that Dr.
Garber “posed a threat to officer safety at the time as
he completely disregarded our scene integrity and showed no
regard for authority.” DE 81-11 at 6. Officer Zampini
testified that Dr. Garber was resisting and was being
aggressive and noncompliant, DE 81-9 at 34, and answered in
response to interrogatories that he “felt an imminent
threat by [Dr. Garber's] aggressive demeanor and active
physical resistance coupled with his non-compliance of verbal
commands.” DE 81-10 at 6.
Jumelles instructed Dr. Garber to “sit down, ”
and he did not immediately comply. DE 89-2 at 29:46. However,
other officers were holding onto Dr. Garber at the time, and
it is disputed whether he was being held up, such that he was
unable to comply. See DE 87 at 6.
Garber eventually became seated on the floor and was then
made to lie on the floor on his stomach while he cried
“get off me, ” “he assaulted me, ”
and “you broke my . . . glasses.” DE 81-3 at
31:58-32:30; DE 89-2 at 29:48-30:18. According to Officer
Esteves, Dr. Garber became seated on the floor after he
(Officer Esteves) “completed [a] leg sweep
takedown” by hooking his leg around Dr. Garber's
legs to “take the legs out from under him and bring him
to the floor.” DE 81-4 at 53. Dr. Garber acknowledged
that Officer Esteves did a leg sweep to get him onto the
floor and testified that he “landed very hard on the
ground” and that a person or multiple people landed on
top of him. DE 81-12 at 99-100, 103. Dr. Garber briefly
grabbed onto a bedframe while being made to lie on the floor.
DE 81-3 at 32:05-08.
Garber testified that a person or multiple people were
“kicking” him on his left leg in “[t]he
knee area, ” but that he did not see the kicking
because he “was face down” lying on his stomach.
DE 81-12 at 103-06. When asked who was kicking him, Dr.
Garber testified: “I can't say. There were at least
four people involved. There could have been five or six. I, I
was in shock. I had no idea.” Id. at 105. A
resident of the home who witnessed the incident testified
that officers repeatedly kicked Dr. Garber “everywhere,
” including in the leg, while he was standing to try to
get him onto the floor and that officers also kicked Dr.
Garber while he was on the floor. DE 87-1 at 23-27, 49-50,
57, 61-62. When asked which officers kicked Dr. Garber, the
resident witness stated “[i]t was a few officers”
and gave the descriptions of a “female, ” a
“Spanish or darker male” who may have been
“Dominican or black, ” and a
“[p]lainclothed” officer, but also stated that
all of the officers that were present participated in the
kicking. Id. at 26, 49-50. A second resident witness
testified that officers kicked Dr. Garber while he was on the
floor. DE 87-2 at 25-27.
Jumelles, Esteves, and Zampini began to place Dr.
Garber's hands in handcuffs behind his back. DE 81-3 at
32:25; DE 89-2 at 30:13. The resident witnesses saw Dr.
Garber being handcuffed and did not see him resisting. DE
87-1 at 27, 51; DE 87-2 at 18-19. While the officers were
attempting to place Dr. Garber in handcuffs, he stated
“I'm a surgeon, don't break my . . . wrist,
” “I have a rotator cuff injury, ” and
“if you pull my wrist back, you're going to break
my elbow.” DE 81-3 at 32:56-33:35; DE 89-2 at
30:46-31:24. The three officers eventually were able to
handcuff Dr. Garber with his hands behind his back using two
sets of handcuffs. DE 81-3 at 33:19-34:03; DE 89-2 at
31:04-31:50. The two sets of handcuffs permitted Dr. Garber
“to have a wider spread behind his back” so that
there would not be “as much stress on his
shoulders.” DE 81-5 at 38-39. While still lying on the
floor, Dr. Garber stated “you hurt my wrist, ”
“you broke my wrist for nothing, ” and
“call the medics.” DE 81-3 at 34:08-:17; DE 89-2
Dr. Garber turned back to the officers and stated “you
three guys, was it necessary for you to take me down, I
didn't do anything.” DE 81-3 at 34:26-:29; DE 89-2
at 32:14-19. Officer Esteves stated “you put your hands
on an officer, ” to which Dr. Garber responded “I
didn't touch him.” DE 81-3 at 34:30-:38; DE 89-2 at
32:20-27. Dr. Garber asked to have the handcuffs removed or
loosened, and Officer Jumelles denied the request, stating
that he had “plenty of space” in the handcuffs.
DE 81-3 at 34:40-:52; DE 89-2 at 32:28-:42.
Jumelles and Dunlop raised Dr. Garber to a seated, and then
to a standing, position. DE 81-3 at 34:53-35:12; DE 89-2 at
32:38-:58. Officer Jumelles and an unnamed officer escorted
him through the upstairs hallway, down the stairs, and out of
the residence to a police car. DE 81-3 at 35:39-36:37; DE
89-2 at 33:28-34:24. While being escorted, he stated
“you're hurting me, you don't need to do
this” and “what's wrong with you.” DE
81-3 at 35:57-36:02; DE 89-2 at 33:46-:52. Officer Jumelles
and the unnamed officer searched Dr. Garber's pockets. DE
81-3 at 36:45-37:22; DE 89-2 at 34:34-35:12. He was told to
“have a seat” in the police car, and he got into
the car and was driven from the scene. DE 81-3 at
37:23-39:02; DE 89-2 at 35:13-36:54.
Garber was seen at a hospital, underwent x-rays, and was
“medically cleared.” DE 81-12 at 116-17; DE
81-13. He was given a notice to appear for resisting an
officer without violence, but that charge was later
dismissed. DE 81-1 at 85; DE 81-12 at 128-29; DE 81-14.
Garber contends that, as a result of this incident, he
suffered (1) a fracture to his left knee for which he used a
brace, crutches, and a cane for a time and which continues to
cause pain and discomfort; (2) back and spine injuries that
include disc herniations and that cause pain, spasms, and
discomfort; (3) injuries to both hands and wrists including
nerve injuries, causing pain, numbness, swelling, weakness,
and decreased range of motion; (4) reinjury of his right
rotator cuff, causing pain and decreased range of motion; (4)
bruising to various parts of his body; and (5) accelerated
hypertension, depression, anxiety, insomnia, nightmares, and
post-traumatic stress disorder. DE 81-12 at 32-34, 40-42, 51,
53-54, 56-58, 58-59, 134, 136, 139; DE 81-15 at 5-7.
Garber filed this action in state court, and Defendants
jointly removed the action to this Court. DE 1. The Amended
Complaint raises two counts under 42 U.S.C. § 1983. DE
34. Dr. Garber brings a claim against Officers Jumelles,
Dunlop, Esteves, and Zampini for use of excessive force.
Id. at 6-8. Dr. Garber also brings a claim against
the City for deliberate indifferent policies, ...