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Garber v. City of Boynton Beach

United States District Court, S.D. Florida

July 29, 2019

HARVEY GARBER, M.D., Plaintiff,
CITY OF BOYNTON BEACH, et al., Defendants.



         This 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 premises.

         For 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 denied.


         On June 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.

         Dr. 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.

         When 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.

         Dr. 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.

         Officer 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.

         Officer 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.

         Officer 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.

         Dr. 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.

         Dr. 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.

         Officers 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 at 31:57-32:05.

         Thereafter, 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.

         Officers 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.

         Dr. 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.

         Dr. 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.


         Dr. 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, ...

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