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UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT



CASE NO. 10-11673-C
D.C. CASE NO. 09-CV-80872-JIC




NORREL SUTHERLAND, et al,

AppellantPlaintiff,
vs.

BRIAN ALLISON, et al,

Appellee-Defendant.

/

___________________________________

INITIAL BRIEF OF APPELLANT,
NORREL SUTHERLAND
___________________________________


DANIEL S. WEINGER
Florida Bar No. 172900
dweinger@conradscherer.com
GREGORY R. BARTHELETTE
Fla. Bar No.: 791296
gbarthelette@conradscherer.com
CONRAD & SCHERER, LLP
Attorneys for Appellant
633 South Federal Highway
Fort Lauderdale, Florida 33301
Telephone: (954) 462-5500
Facsimile: (954) 463-9244
ii
Certificate of Interested Persons and Corporate Disclosure
Statement
Appellant, Norrel Sutherland, certifies that the following persons and
entities have or may have an interest in the outcome of this appeal:
William R. Scherer, III, Daniel S. Weinger, and Gregory R.
Barthelette of Conrad & Scherer - Attorneys for
Plaintiff/Appellant, Norrel Sutherland

Neal Hirschfeld of Greenspoon Marder, P.A. Co-counsel for
Plaintiff/Appellant, Norrel Sutherland

Fred H. Gelston, P.A. - Attorney for Defendants/Appellees
Deputy Brian Allison - Defendant/Appellee
Deputy Max Perez Pizarro - Defendant/Appellee
Rick L. Bradshaw - Sheriff of Palm BeachCounty, Florida

The Honorable James I. Cohn District Court Judge
Barry S. Seltzer - Chief Magistrate Judge
iii
Statement Regarding Oral Argument
Appellee, Norrel Sutherland, requests oral argument to address any
questions or concerns that this Court may have with regard to facts and
arguments raised in this appeal. Appellant believes oral argument is
appropriate because this appeal involves complex issues regarding
constitutional rights.
iv
Table of Contents
Certificate of Interested Persons and Corporate Disclosure Statement .......... ii
Statement Regarding Oral Argument ............................................................ iii
Table of Contents ........................................................................................... iv
Table of Authorities ........................................................................................ v
Statement of Jurisdiction .............................................................................. vii
Statement of the Issues ................................................................................... 1
Introduction ..................................................................................................... 2
Statement of the Case ..................................................................................... 3
A. Course of Proceedings and Dispositions in the Court Below ............... 3
B. Statement of the Facts .......................................................................... 4
C. Standard of Review ............................................................................ 13
Summary of the Argument ........................................................................... 14
Argument ...................................................................................................... 16
I. The District Court Erred in Finding That There was Insufficient
Evidence to Create a Material Issue of Fact as to Whether Allison and
Perez Used Excessive Force when Handcuffing Sutherland .................... 16
A. Sutherland Sufficiently Established that Allison and Perez Violated
his Constitutional Right to be Free from Excessive Force by Breaking
his Arm ................................................................................................. 18
B. Sutherland Sufficiently Established that Allison and Perez Also
Violated his Constitutional Right to be Free from Excessive Force by
Slamming him Against a Van and then Leaving his Hands Cuffed
Behind his Back for Forty-Six Minutes After Breaking his Arm Despite
his Repeated Pleas for Help .................................................................. 33
II. The District Court Erred in Granting Allison and Perez Summary
Judgment on Sutherlands deliberate indifferEnce Claim ........................ 34
Conclusion .................................................................................................... 39
Certificate of Compliance ............................................................................. 40
Certificate of Service .................................................................................... 40
v
Table of Authorities
Cases
Bozeman v. Orum,
422 F.3d 1265 (11th Cir. 2005) .......................................................... 22, 35
Brown v. City of Hialeah,
30 F. 3d 1433 (11th Cir. 1994) ................................................................. 22
Brown v. Hughes,
894 F.2d 1533 (11th Cir. 1990) .............................................. 35, 36, 37, 39
Burnette v. Taylor,
533 F.3d 1325 (11th Cir. 2008) ................................................................ 35
Davis v. Williams,
451 F.3d 759 (11th Cir. 2006) ........................................................... passim
Estelle v. Gamble,
429 U.S. 97, 97 S.Ct. 285 (1976) .............................................................. 35
Evans v. Stephens,
407 F.3d 1272 (11th Cir. 2005) ................................................................ 22
Farrow v. West,
320 F.3d 1235 (11th Cir. 2003) ................................................................ 35
Goebert v. Lee County,
510 F.3d 1312 (11th Cir. 2007) ................................................................ 36
Harlow v. Fitzgerald,
457 U.S. 800 (1982) .................................................................................. 17
Harris v. Coweta County,
21 F.3d 388 (11th Cir. 1994) .................................................................... 36
Hope v. Pelzer,
536 U.S. 730 (2002) .................................................................................. 18
Lee v. Ferraro,
284 F.3d 1188 (11th Cir. 2002) ................................................................ 33
Lloyd v. Tassell,
318 Fed. Appx. 755 (11th Cir. 2009) ........................................................ 17
Mercado v. City of Orlando,
407 F.3d 1152 (11th Cir. 2005) ................................................................ 16
vi
Nolin v. Isbell,
207 F.3d 1253 (11th Cir. 2000) ................................................................ 17
Reeves v. Sanderson Plumbing Prods., Inc.
530 U.S. 133 (2000) .................................................................................. 24
Rodriguez v. Farrell,
280 F.3d 1341 (11th Cir. 2002) ......................................................... passim
Scala v. City of Winter Park,
116 F.3d 1396 (11th Cir. 1997) ................................................................ 13
Secondo v. Campbell,
327 Fed. Appx. 126 (11th Cir. 2009) ............................................ 28, 29, 30
Skritch v. Thornton,
280 F.3d 1295 (11th Cir. 2002) ................................................................ 19
Smith v. Mattox,
127 F.3d 1416 (11th Cir. 1997) .............................................. 18, 19, 30, 31
Tatum v. Jackson,
2009 WL 3633975 (S.D.N.Y.) .................................................................. 24
U.S. v. Urban,
404 F.3f 754 (3rd Cit. 2005) ..................................................................... 24
Wilson v. United States,
162 U.S. 613, 16 S.Ct. 895 (1896) ............................................................ 24
Statutes
28 U.S.C. 1291 ............................................................................................ vii
42 U.S.C. 1983 ........................................................................................ 3, 16
Rules
Fed. R. App. P. 32 ................................................................................... 39, 40

vii
Statement of Jurisdiction
This case involves an appeal of a final order granting summary
judgment in favor of Defendants, Deputies Brian Allison and Max Perez.
This Court has jurisdiction pursuant to 28 U.S.C. 1291.

1
Statement of the Issues
I. WHETHER TWO POLICE OFFICERS USED
EXCESSIVE FORCE BY BREAKING AN
ARRESTEES ARM DURING HANDCUFFING AND
THEN LEAVING HIS BROKEN ARM BEHIND HIS
BACK FOR NEARLY AN HOUR

II. WHETHER TWO POLICE OFFICERS
WERE DEILBERATELY INDIFFERENT TO AN
ARRESTEES NEED FOR IMMEDIATE MEDICAL
ASSISTANCE BY BREAKING HIS ARM AND THEN
LEAVING IT CUFFED BEHIND HIS BACK FOR
NEARLY AN HOUR WITHOUT RESPONDING TO
HIS REPEATED REQUESTS FOR MEDICAL
ASSISTANCE
2
Introduction
This is an appeal by the Appellant, Norrel Sutherland (Sutherland,
Plaintiff, or Appellant), from an order granting final summary judgment in favor
of the Appellees, Deputies Brian Allison and Max Perez (Allison, Perez, or,
collectively, Defendants or Appellees).
The following symbols will be used:
(R.) Record on Appeal.
All emphasis is supplied by counsel unless otherwise indicated.
3
Statement of the Case
A. COURSE OF PROCEEDINGS AND
DISPOSITIONS IN THE COURT BELOW
This case stems from a violent and brutal arrest in which Deputies Brian
Allison and Max Perez broke Norrel Sutherlands right arm, causing permanent
damage. (R. 14) As a result of the incident, Mr. Sutherland brought claims
pursuant to 42 USC 1983 against Deputies Allison and Perez for violating his
constitutional rights to be free from excessive force and deliberate indifference,
and for failure to provide reasonable accommodations in violation of the
Americans with Disabilities Act.
1
(R. 14 at 1, 32-41) Sutherland also brought
Florida common law claims for battery against the Palm Beach Sheriffs Office.
(R. 14 at 42-46) Additionally, Sutherlands wife, Nadina Sutherland, brought a
Florida common law claim for loss of consortium. (R. 14 at 1, 47-48) Upon the
close of discovery, the district court granted the Defendants Motion for Summary
Judgment as to all of the Sutherlands federal claims, but remanded to state court
the Florida common law claims. (R. 35)

1
The claims under the Americans with Disabilities Act have been abandoned in
this appeal.
4
B. STATEMENT OF THE FACTS
General Background
In the early morning hours of February 17, 2008, Norrel Sutherland arrived
at the Lake Worth Swap Shop at around 6:00 am, parking his van on a two lane
road located next to the establishment. (R. 23-1, p. 29, lines 18-20) Sutherland
believed that this was an appropriate place to leave his vehicle as a result of having
previously parked in this same area without incident. (R. 23-1, p. 25, lines 14-17;
p. 34, lines 22-24)
As Sutherland has a physical disability, he obtained a handicap parking
permit that prominently hung from the rear-view mirror of his van. (R. 23-1, p. 62,
lines 6-20) The underlying disability arose from a work-related accident in 1994 in
which Sutherland became entangled in the cable spool of a crane. (R. 23-1, p. 13,
lines 19-25; p. 14, lines1-8) As a result, Sutherlands right arm and shoulder
sustained serious injuries (R. 27-1, p. 13, lines 19-22), causing Sutherland an
inability to actively move his right arm and a limited passive range of overall
motion. (R. 27-1, pp. 13-15, 2) Further, Sutherlands arm could not go behind
his back, either actively or passively. (R. 27-1, pp. 13-15, 2) Even though he
wore a long-sleeve shirt to the Swap Shop, the preexisting injury to Sutherlands
right arm was readily apparent as a result of the claw-like appearance of, and three
partially missing fingers on, his still exposed right hand. (R. 27-1, pp. 13-15, 3; R.
5
27-1 pp. 16-17) Photographic evidence submitted in the trial court shows that
Sutherlands disfigurement is readily apparent, even upon a cursory inspection.
(R. 27-1 pp. 16-17) Critically, there was no evidence introduced to show that
Sutherlands preexisting limited range of motion made it so that his arm would
sustain fractures or breaks from any less force than would be required to break a
perfectly healthy arm. (R. 1-41)
The Incident
After a short time at the Swap Shop, Sutherland returned to his van and
discovered, to his surprise, a parking ticket on the windshield. (R. 23-1, pp. 33,
line 14) Sutherland observed some police officers coming down the street at the
time and asked if any of the officers had given him the ticket. (R. 23-1, pp. 39-41)
While the officers were closing in, Sutherland repeated the question. (R. 23-1, pp.
39-41)
By way of answer, in a loud and clearly agitated state, Deputy Allison
exclaimed no fking parking there. (R. 23-1, p. 40, line 18) As the officers
came even closer, Sutherland again asked [d]id you give me this ticket, to which
Allison responded the fking sign is there. (R. 23-1, p. 40, lines 24-25) After
Sutherland asked where the sign was, Allison grabbed Sutherland by his left arm
near the shoulder and pitched him forward as if trying to physically show
Sutherland the sign. (R. 23-1, p. 41, lines 1-12)
6
Sutherland steadied himself, asking Allison what did you do that for? (R.
23-1, p. 41, lines 12-13) In response, Allison rushed up against Sutherland, as if
trying to pick a fight, and said because youre a fcking moron. (R. 23-1, p. 40,
lines 14-18) Another officer then grabbed Sutherland from behind and put
Sutherland in a chokehold while Allison took hold of the injured arm. (R. 23-1, p.
48, line 25, p. 49, lines 1-8) The officers then told Sutherland to get down on his
knees, which he did by going limp. (R. 23-1, p. 49, lines 9-10; R. 22-3, p. 49, lines
12-25, p. 50, line 1) Realizing that Allison was about to cuff his arms behind his
back, Sutherland pleaded with him, saying [l]isten, dont hold this arm, man, this
arm is hurt, please, please, please please, please, dont break my arm, dont hurt
me Listen, this arm is sick, please, it cant go behind me, it cannot, please. (R.
23-1, p. 42, line 25, p. 43, lines 1-2)
Despite having taken Sutherlands patently deformed arm in his hands, as
well as observe it from up close, Allison remained indifferent to Sutherlands pleas
for mercy. Instead of proceeding with care on account of the state of Sutherlands
arm, Allison took things to the other extreme. (R. 23-1, pp. 42-45) Specifically,
Allison had two other officers hold Sutherland down, one of whom put their knee
in Sutherlands back. (R. 23-1, p. 44, lines 10-23) Sutherland continued to plead
with the officers, but Allison kept getting angrier and angrier until he unleashed a
profanity laced tirade, which culminated in calling Sutherland a fking Haitian
7
and telling Sutherland that he was going to teach [him] a lesson. (R. 23-1, p. 45,
lines 1-8) Allison proceeded to do just that by repositioning himself and furiously
yanking on Sutherlands arm repeatedly. (R. 23-1, p, 45, lines 7-13) Sutherland
believes that this went on for several minutes. (R. 23-1, p. 50, lines 7-8) Even by
Allisons own account, it took a full minute between the time Sutherland went to
the ground to when he was successfully handcuffed. (R. 22-3, p. 51, lines 15-18)
Whether it took one minute or several, things came to a head when, in his fury,
Allison pulled so hard on the damaged arm that it finally snapped, at which point
Sutherland felt a sharp shock as his right arm broke. (R. 23-1, p, 45, lines 7-13)
The pain from Allison breaking his arm was so agonizing that Sutherland briefly
lost consciousness. (R. 23-1, p. 45, lines 7-13)
The Officers Ignore Sutherlands Multiple Requests for
Medical Attention
The next thing Sutherland remembers is being slammed against his van with
his hands cuffed behind him. (R. 23-1, p. 45, lines 10-13, p. 46, lines18-21) At the
time, the officers were already searching the van which, it should be remembered,
contained a handicap parking permit hanging from the rearview mirror. (R. 23-1,
p. 45, lines 24-25, p. 62, lines 6-20) Sutherland made numerous requests for
medical assistance, although he never specifically used the term paramedics. (R.
23-1, p. 59, lines 1-10) Sutherland made his first request for medical assistance
upon being placed into Allisons patrol car a short time later. (R. 23-1, p. 55, lines
8
21-25, p. 56, lines 1-8) While being detained in Allisons car, Sutherland also
asked Deputy Perez to ease the cuffs a bit or put his arm in front of him. (R. 23-1,
p. 58, lines 19-24, p. 64, lines 7-8) Perez didnt respond. (R. 23-1, p. 58, lines 21-
24, p. 64, lines 7-8) Sutherland made another attempt at asking Perez for medical
assistance a short time later, saying, Listen man Im having a lot of pain, and I
need help. (R. 23-1, p. 58, line 25, p. 59, lines 1-3, p. 64, lines 7-8) Deputy Perez
remained unresponsive. (R. 23-1,p. 59, lines 1-3, p. 64, lines 7-8)
Later, Perez approached Sutherland and asked where he got his handicap
parking permit. (R. 23-1, p. 62, lines 6-9, p. 64, lines 7-8) Sutherland told Deputy
Perez that he got it from the motor vehicle department and it was because his arm
was disabled. (R. 23-1, p. 62, lines 14, p. 64, lines 7-8) Sutherland then asked
Perez, yet again, to ease the pressure on his right arm from the handcuffs. (R. 23-
1, p. 62, lines 20-22) With the discussion of the handicap permit fresh in his mind,
Perez continued his pattern of apathy. (R. 23-1, p. 62, lines 23-24)
Deputy Allison came to the car when it appeared that he was ready to go and
Sutherland asked him if he could ease the pressure from the cuff. (R. 23-1, p. 62,
line 25- p. 63, line 10) Deputy Allison told him hold on and walked away. (R.
23-1, p. 62, line 25, p. 63, lines 1-10) Sutherland later asked for medical assistance
one more time, saying [l]isten, man, give me a break, manI need medical
attention, man. (R. 23-1, p. 63, lines 22-23) Deputy Allison responded No,
9
you're going to jail and did not obtain medical assistance. (R. 23-1, p. 63, lines
24-25)
Shortly after 10:00 am, approximately five minutes before driving
Sutherland to jail, Allison took Sutherland out of the police car and finally moved
Sutherlands right arm from the back to the front before reapplying the handcuffs.
(R. 27-1, p. 14, 4) Allison left with Sutherland for the jail at 10:13 a.m. (R. 23-3,
pp. 28-29) By this time, Sutherlands arm was visibly swollen. (R. 27-1, p. 14, 4)
Sutherland had remained in handcuffs with his disabled and broken right arm
pinned behind his back for roughly forty-six minutes, from 9:22 until 10:08 a.m.
(R. 23-3, pp. 27-28) Sutherland was ultimately charged with resisting arrest
without violence as a result of initially arguing about the parking ticket with the
officers rather than move from the street. (R. 23-1, p. 69, lines 1-4, R. 27-2, p. 3,
2)
After being released from jail, Sutherlands wife took him straight to the
emergency room at Palms West Hospital (R. 23-1, p. 76, lines 1-25, p. 77, lines 1-
17), where he was admitted with a severely fractured arm. (R. 23-1, pp. 76-77).
He was taken to surgery at the next available time, which was the following
morning. (R. 23-1, p. 77, lines 6-17) Sutherland remained in the hospital until the
following week. (R. 23-1, p. 78, lines 7-12) In addition to suffering a broken arm,
Sutherland also sustained further nerve damage from the incident: he no longer has
10
any movement in his pinky finger and his passive range of motion in his right arm
has been reduced by half as compared to his passive range of motion prior to the
incident. (R. 27-1, pp. 14-15, 6)
The Botched Internal Investigation Undermines the
Officers Version of Events
In response to a complaint by Sutherland to the Palm Beach County
Sheriffs Office about the excessive force used in his detention, Sgt. Kevin
Linardos conducted an internal investigation. (R. 23-9, pp. 3-5; R. 27-1, pp. 13-
15) Deputies Allison and Perez claimed that Allison quickly handcuffed Mr.
Sutherland without incident, which Linardos understood to mean that it occurred
without putting Sutherland on the ground and without resistance.
2
(R. 23-9, p. 35;
R. 27-2, p. 2) Linardos purportedly interviewed independent witnesses, including
Janelle Schrein, who lived in a nearby area. (R. 23-9, p. 24, lines 14-16; R. 27-2,
p. 2) According to Linardoss report, Ms. Schrein backed up the officers story
that Sutherland was not taken to the ground during the incident. (R. 23-9, pp. 25-
26; R. 27-2, p. 2) When deposed in this case, however, Ms. Schrein testified that
she was not even present when Mr. Sutherland was arrested. (R. 23-12, p.7, lines
23-5, p. 8, line 1) In fact, she testified that she was never even interviewed by Sgt.

2
Although any claims by Allison and Perez which contradict the testimony of
Sutherland are resolved in Sutherlands favor for summary judgment purposes, the
inconsistencies in Appellees evidence, discussed infra, help further underscore the
inappropriateness of summary judgment in this case.
11
Linardos or any other police officer about the incident. (R. 23-12, p. 11, lines 19-
25, p. 12, lines 1-3)
Sgt. Linardos also interviewed Officer Robert Hite, a Palm Springs police
officer who purportedly claimed that Sutherland was handcuffed without incident,
which Linardos once again claimed to mean without any problems whatsoever,
such as receiving resistance from Sutherland or taking him to the ground. (R. 23-9,
p. 28, lines 9-22; p. 29, lines 8-25; p. 30, lines 1-7; R. 27-2, p. 2) Linardos
documented the following statement by Officer Hite in his report:
I made contact with Palm Springs Police Officer Robert Hite
(ID#155) also known as Big Rob. Officer Hite was working the Swap
Shop detail when he heard and observed two deputies trying to
verbally direct Mr. Sutherland out of the road. Officer Hite went over
to the deputies location, and observed one deputy quickly
handcuffing Mr. Sutherland. . . . Officer Hite also stated he heard D/S
Deputy Perez-Pizzaro offer Mr. Sutherland medical treatment but Mr.
Sutherland refused As Mr. Sutherland was now cooperative,
Officer Hite left the scene.
(R. 27-2, p. 2)
Like Mrs. Schrein, Officer Hite also offered testimony in this case that
undermines both Appellees version of events, as well as Linardoss report. (R.
23-7) Hite testified that he contacted his dispatch at 9:19 a.m. and 50 seconds and
told them that PBS units were taking a male down to the ground. (R. 23-7, p.7,
lines 24-25, p. 8, lines 1-8) Hite further recalled that after observing two deputies
trying to apprehend a male, he ran over and asked if they needed assistance. (R.
12
23-7, p. 11, lines 1-17) In direct contrast to Linardoss report, Hite testified that he
observed Sutherland on the ground while two officers pulled on his arms in
effectuating the handcuffing. (R. 23-7, pp. 12-13) Further, Hite testified that he
never heard either of the deputies ask Sutherland whether he needed medical
assistance, saying that if it happened, he wasnt there for that part. (R. 23-7, pp.
14-15)
In conducting the internal investigation, Linardos also interviewed Allison
and Perez, who told Linardos that Sutherland was arrested without resistance and
without any problems with handcuffing. (R. 27-2, pp. 2-2) In this case, however,
they now insist that Sutherland was thrashing about on the ground, pushing his
arms away from Allisons control, and was told to stop resisting. (R. 19, pp. 5-6;
R. 22-3, pp. 49-55)
Based on these inconsistencies, Linardos concluded not only that there was
no evidence of unreasonable force, but, incredibly, that there was no evidence that
Sutherland had even suffered an injury. (R. 23-9, p. 37, lines 8-12; R. 27-2, pp. 1,
3)
The Trial Courts Order
Despite the inconsistencies between Sutherlands testimony and the
officers, as well as the differences between the testimony taken in this case and
the statements contained in Sergeant Linardoss report, the trial court granted
13
summary judgment by inexplicably accepting Allisons and Perezs version of
events as true.
3
(R. 35) This appeal follows.
C. STANDARD OF REVIEW
A de novo standard of review is appropriate to apply to the entry of
summary judgment by a district court. Scala v. City of Winter Park, 116 F.3d 1396,
1398 (11th Cir. 1997). Summary judgment is appropriate only where the record
shows no genuine issue of material fact and that the moving party is entitled to
judgment as a matter of law. Id. Further, all evidence and reasonable factual
inferences drawn therefrom are reviewed in the light most favorable to the party
opposing the summary judgment motion. Id.

3
For readability purposes, rather than extend the fact section, the argument section
of this brief contains the specific references to the parts of the order which show
that the trial court failed to consider the facts in a light most favorable to the non-
moving party.
14
Summary of the Argument
The district court erred in finding no material issues of fact as to whether
Defendants used excessive force. The record evidence sufficiently shows that the
officers conduct violated clearly established constitutional rights of which a
reasonable officer would have known. Whether the amount of force used by an
officer is deemed reasonable depends on the facts and circumstances of each
particular case, including the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officer or others, and whether he is
actively resisting arrest or attempting to evade arrest by flight. Here, the severity
of the crime, the threat posed to the officers or others at the time of the arrest, and
the level of resistance was minimal. Additionally, Allison and Perez were not only
informed by Sutherland at the very outset of the encounter that his arm was sick
and could not be moved behind his back, but these claims were easily verified by
sight and feel. Instead of considering these factors in confirming Sutherlands
pleas, Allison continued to forcefully yank and pull his arm until it broke. As
further indicia of Allisons malicious intent, he uttered a racial epithet and said he
was going to teach Appellant a lesson immediately prior to breaking his arm. To
make matters worse, Allison and Perez then kept Sutherlands broken arm cuffed
behind his back for an additional forty-six minutes.
15
The trial court also mistakenly treated Sutherland as an egg-shell plaintiff.
The cases relied upon by the trial court in granting summary judgment all involved
handcuffing procedures with a routine level of force that resulted in serious injuries
strictly because of the plaintiffs preexisting conditions. This is simply not what
occurred here; there is no record evidence that the preexisting condition that
limited Sutherlands range of motion made it so that his arm would sustain breaks
from any less force than would be required to break a perfectly healthy arm.
The trial court also erred by granting summary judgment on Sutherlands
deliberate indifference claim. Sutherland introduced evidence that neither Allison
nor Perez offered him medical attention at any point during their encounter.
Instead, Sutherland had to repeatedly ask for medical help and such requests were
either ignored or blatantly refused. Sutherlands repeated pleas, his loss of
consciousness, swollen arm, and handicap parking permit were but a few of several
objective indicators demonstrating his serious medical condition and need for
immediate medical attention. Both Allison and Perez knew that the handcuffs,
which stretched Sutherlands broken arm behind his back, were in a position which
caused him agonizing pain and discomfort, yet they did nothing for almost an hour.
Allison and Perez did not contact paramedics, take Sutherland to the hospital, or
even check Sutherlands arm after his initial requests for medical help. Instead,
they dumped Sutherland at the jail without a single word about his condition.
16
Argument
I. THE DISTRICT COURT ERRED IN FINDING
THAT THERE WAS INSUFFICIENT EVIDENCE TO
CREATE A MATERIAL ISSUE OF FACT AS TO
WHETHER ALLISON AND PEREZ USED EXCESSIVE
FORCE WHEN HANDCUFFING SUTHERLAND
A government official may be held liable under 1983 when their conduct
violates clearly established statutory or constitutional rights of which a reasonable
person would have known. See Mercado v. City of Orlando, 407 F.3d 1152, 1156
(11th Cir. 2005). It is well established that a person has a constitutional right to be
free from all reasonable searches and seizures, including the right to be free from
excessive force. Id. at 1156; Davis v. Williams, 451 F.3d 759, 767 (11th Cir. 2006)
(noting that it is clearly established that the use of excessive force in carrying out
an arrest constitutes a violation of the Fourth Amendment).
The Eleventh Circuit has held that that an officers use of de minimis force is
both necessary and reasonable to apprehend a person and place them under arrest.
See e.g., Rodriguez v. Farrell, 280 F.3d 1341, 1352 (11th Cir. 2002) (holding that
painful handcuffing without more, is not excessive force where the resulting
injuries are minimal.). However, a plaintiff can establish 1983 liability for an
officers use of excessive force by demonstrating that the officers, in making an
arrest, used force against the individual which went above and beyond de minimis
force which a reasonable officer would have used in the same situation. See Nolin
17
v. Isbell, 207 F.3d 1253, 125556 (11th Cir. 2000). Whether the amount of the
force is deemed reasonable depends on the facts and circumstances of each
particular case, including the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officer or others, and whether he is
actively resisting arrest or attempting to evade arrest by flight. Davis, 451 F.3d at
767.
The doctrine of qualified immunity shields government officials that are
engaged in a discretionary function from liability for civil damages insofar as
their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known. Davis, 451 F.3d at 762
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). This Court has held that
in order to withstand an officers claims of qualified immunity for their use of
excessive force, a plaintiff must show that the unconstitutionality of the officers
conduct was clearly established at the time of the violation. Lloyd v. Tassell, 318
Fed. Appx. 755, 758 (11th Cir. 2009). A plaintiff can do this in one of two ways:
1) by identifying a materially similar case in which the officers action was
found to be unlawful; or 2) by showing that the general standards are so clear that
they would lead all reasonable officers in the defendants position to conclude that
the force was unlawful. Id. In other words, even in the absence of a factually
similar case declaring the officials conduct unconstitutional, a plaintiff can still
18
overcome qualified immunity by showing that the officials conduct lies so
obviously at the very core of what the Fourth Amendment prohibits that the
unlawfulness of the conduct was readily apparent to the official, notwithstanding
the lack of case law. Smith v. Mattox, 127 F.3d 1416, 1418 (11th Cir. 1997). See
also Davis, 451 F.3d at 762 (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002) for
the proposition that officials can still be on notice that their conduct violates
established law even in novel factual circumstances . . . . [A]lthough earlier cases
involving fundamentally similar facts can provide especially strong support for a
conclusion that the law is clearly established, they are not necessary to such a
finding). Here, not only was Allisons and Perezs conduct excessive under
materially similar caselaw, but the unlawfulness of their misconduct was readily
apparent in any event.
A. Sutherland Sufficiently Established that Allison
and Perez Violated his Constitutional Right to be
Free from Excessive Force by Breaking his Arm
Sutherland has sufficiently demonstrated that Allisons and Perezs
4
conduct
violated clearly established constitutional rights of which a reasonable officer

4
Although the bulk of the excessive force in handcuffing Sutherland was
committed by Allison, any liability extends to Perez. Perez stood idly by watching
Allison repeatedly yank Sutherlands arm before finally pulling with such force as
to cause a break. It is clearly established in this Circuit, however, that Perez is
liable for all of these acts because of his integral participation, as well as his failure
to stop Allison by standing idly by. See Skritch v. Thornton, 280 F.3d 1295, 1302
19
would have known. Smith, 127 F.3d at 1420. Not only were Allisons and Perezs
actions so clearly beyond the hazy border between excessive and acceptable
force that they knew or should have known they were violating the Constitution,
but there are also multiple materially similar cases from this Circuit in which this
Court found that the officers actions were unlawful. See Smith, 127 F.3d at 1419;
Davis, 451 F.3d at 763.
This Courts decision in Davis v. Williams is strikingly similar to the case at
hand. 451 F.3d 759 (11th Cir. 2006). In Davis, the plaintiff, who was hosting a
family gathering, became concerned for the safety of several guests who had not
yet arrived after noticing flashing police lights outside his home. Id. at 763. The
plaintiff proceeded down his driveway and approached two deputies performing a
traffic stop. The plaintiff informed the officers that he was the homeowner and
asked why they were on his property. The officers told him to get away to which
the plaintiff responded I live here. The officers then repeated their order for the
plaintiff to leave. The plaintiff complied and began walking towards his home.
The plaintiff then noticed, however, that the police car was blocking a section of
his land, thereby forcing cars to drive onto another portion of his property which

(11th Cir. 2002) (recognizing that an officer who is present at the scene and who
fails to take reasonable steps to protect the victim of another officers use of
excessive force, can be held liable for his nonfeasance.). Moreover, Perez
actively participated in extending the ordeal by forty-six minutes.
20
ended in an unlit lake. Worried that someone would drive into the unlit lake, the
plaintiff asked the officers if he could direct traffic away from that area. The
officers again told him to go away or that they would arrest him. Although the
plaintiff began walking towards his home, one of his guests asked the Deputy for
his badge number. Both officers then grabbed the plaintiff from behind, twisted
his arms behind his back, and handcuffed him. Id.
The plaintiff immediately told the officers that he had an injured shoulder
and was in pain. Id. at 764. The deputies response was to push on his hurt arm
with even more force, causing greater pain. The deputies then forced the plaintiff
to the ground by pushing on his bad shoulder, dragged the plaintiff to their police
car, and once again pushed on his bad shoulder while forcing him to the ground.
The plaintiff was eventually diagnosed with a torn rotator cuff in his right
shoulder, which required surgical repair. Id. Ultimately, the plaintiff was charged
with obstruction of justice and disorderly conduct. Id. at 761.
This Court found that even if the officers had probable cause to apprehend
the plaintiff for obstruction of justice and disorderly conduct, under these
circumstances a reasonable jury could find that they used excessive force in
carrying out the arrest. Id. at 767. In so doing, the Court looked at the totality of
circumstances, noting that the plaintiff was not suspected of having committed a
serious crime, he did not pose an immediate threat to anyone, and he did not
21
actively resist arrest. Id. The Court additionally focused on the fact that even
after being told by the plaintiff of his pre-existing injury, the officers nevertheless
pushed him to the ground, dragged him, and intentionally inflicted more pain onto
his injured shoulder after he had been detained. Id.
Like the plaintiff in Davis, the severity of the crime (resisting arrest without
violence for arguing over a parking ticket), the threat posed to the officers or others
at the time of the arrest, and the level of resistance (Sutherland voluntarily went
limp) was, to say the least, minimal. The additional factors showing the officers
knowledge of the preexisting condition, however, make this case even more
egregious than the conduct in Davis. Here, Allison and Perez were informed by
Sutherland at the very outset of the encounter that his arm was sick and could not
be moved behind his back. Because of the claw like appearance of Sutherlands
arm (including partially missing fingers), as well as the presence of the handicap
permit on Sutherlands van,
5
however, Allison and Perez had even more indicia of
the preexisting condition than the officers in Davis. Instead of considering these
factors in conjunction with Sutherlands numerous pleas, Allison continued to
forcefully yank and pull his arm until it broke. Moreover, here, unlike in Davis,

5
The handicap permit was in plain view of the officers from the time they initially
placed a ticket on Sutherlands windshield through the entire arrest, including the
initial discussions between Sutherland and the officers, which occurred right in
front of Sutherlands van.
22
the officer uttered a racial epithet and said he was going to teach Appellant a lesson
immediately prior to breaking his arm. See Brown v. City of Hialeah, 30 F. 3d
1433, 1436 (11th Cir. 1994) (finding that racial epithets and profanities that are
yelled by an officer during an arrest can be considered in assessing the objective
reasonableness of the officers force. ) See also Bozeman v. Orum, 422 F.3d 1265,
1272 n. 11 (11th Cir. 2005) (same); Evans v. Stephens, 407 F.3d 1272, 1281-82
(11th Cir. 2005) (recognizing that threatening and racist language has an impact
on people and counts towards the unreasonableness of the manner in which the
officer performs his duties).
In granting summary judgment, the trial court distinguished Davis by
improperly making several factual findings in favor of Appellees/Defendants.
First, the court found that Sutherland was only subjected to a single action of
forcible handcuffing in which his arm was broken mere seconds after informing
the officers that his arm was sick. (R. 35, pp. 13-14) This ignores Sutherlands
testimony that Allison yanked on his arm for several minutes before finally
breaking it and securing the cuffs. For that matter, even Allison testified that a full
minute passed between the time Sutherland was secured on the ground and the
time he was placed in handcuffs. The distinction between the exertion of force for
a few seconds versus one or more minutes is crucial not only in relation to the
amount of force used and the intensity of the pain suffered by Sutherland, but also
23
to the issue of whether the officers acted reasonably under the circumstances. The
unreasonableness of Allisons and Perezs conduct exponentially increased with
every passing second/minute. The court not only impermissibly took this issue
from the fact finder, but did so in a way as to be even more favorable to the
defense than what the officers themselves were claiming. Even if Allison had
claimed that the cuffing took a few seconds, however, for purposes of summary
judgment, the court was bound to accept Sutherlands recollection that the struggle
lasted for several minutes.
The court also ignored Sutherlands testimony by finding, based upon the
testimony of the officers and the somewhat limited testimony of a civilian
witness, that Sutherland posed an immediate, albeit minor, threat at the time of
the arrest. (R. 35, pp. 12-13) Once again, for purposes of summary judgment, it is
the testimony supporting Sutherlands version of events that must be accepted.
This is particularly true in light of the glaring inconsistencies between the internal
investigation and the testimony in this case, including Allison and Perez changing
their version of events. These inconsistencies alone create a reasonable inference
that Allison and Perez initially lied about the events in order to cover up their
misconduct.
A fact finder is entitled to consider such indicia of dishonesty about a
material fact as evidence of guilt. See Tatum v. Jackson, 2009 WL 3633975
24
(S.D.N.Y.) (citing Reeves v. Sanderson Plumbing Prods., Inc. 530 U.S. 133, 147
(2000) (finding that a jury could reasonably have inferred that [the defendant] was
deliberately lying about the events of the morning in order to cover up her
misconduct. Such an inference would have been consistent with the general
principle of evidence law that the factfinder is entitled to consider a partys
dishonesty about a material fact as affirmative evidence of guilt.). It is so well
established as to be beyond dispute that, if [a] jury were satisfied, from the
evidence, that false statements in the case were made by defendant, or on his
behalf, at his instigation, they had the right, not only to take such statements into
consideration, in connection with all the other circumstances of the case, in
determining whether or not defendant's conduct had been satisfactorily explained
by him upon the theory of his innocence, but also to regard false statements in
explanation or defense, made or procured to be made, as in themselves tending to
show guilt. U.S. v. Urban, 404 F.3f 754, 782 (3rd Cit. 2005) (quoting Wilson v.
United States, 162 U.S. 613, 620-21, 16 S.Ct. 895, 898-99 (1896)).
Finally, in determining that Sutherlands arm was hidden from view, the trial
court focused solely on Sutherlands long-sleeve shirt and ignored the evidence
showing that, under the totality of circumstances, Alison and Perez knew or
reasonably should have known of his preexisting condition. (R. 35-1, p. 13) This
25
is but another example of the court disregarding its obligation to examine all facts
in a light most favorable to the non-moving party.
That the trial court improperly weighed the evidence is best illustrated by its
reliance on Rodriguez v. Farrell, 280 F.3d 1341 (11th Cir. 2002), which supports
Allisons and Perezs story, in lieu of Davis, which is directly on point under
Sutherlands version of events. In Rodriguez, the plaintiff/arrestee had recently
undergone surgery to his arm after being in a motorcycle accident. Id. at 1343 n.2.
In making the arrest, the officer grabbed the plaintiffs arm, twisted it around his
back, and jerked it high up to his shoulder. Id. at 1351. This resulted in the
loosening of internal surgical hardware and the displacement of a key bone
fragment. Id. Because the procedure employed to handcuff the plaintiff would
have been innocuous if not for his condition, the Court was unwilling to find that
the force used was excessive just because of the severity of the injury. Id.
(describing that [t]he handcuffing technique used by [the officer] is a relatively
common and ordinary accepted non-excessive way to detain an arrestee). Under
these facts, the Court held that the force used in standard handcuffing procedures is
reasonable and does not become excessive when that force merely aggravates a
pre-existing condition that was unknown to the officers at the time. Id.
Rodriguez is easily distinguishable from both the instant case and Davis for
a number of reasons. First, the plaintiff in Rodriguez admitted that he did not tell
26
the officers of his injured arm prior to the arrest, nor were there any outward
indications of the condition. Id. at 1353, n.20. In fact, although the plaintiff was
still wearing a sling on his arm at the time he was pulled over, he removed it prior
to exiting his vehicle. Id. at 1343. In the instant case, even though he wore a long-
sleeve shirt, Sutherland not only informed Allison of his condition numerous times
from the outset, but his statements were readily verifiable by the claw like
appearance of his hand, his partially missing fingers, and the presence of the
handicap permit on his vehicle.
More importantly, the damages suffered by the plaintiff in Rodriguez were
directly attributable to the preexisting condition, whereas both here and in Davis,
although the preexisting condition caused additional pain, and possibly led to more
severe long-term consequences, there is no evidence that the condition itself made
a break any more likely, as discussed in greater detail, infra. Finally, the evidence
shows that the force used against Sutherland was much greater than typical. In
Rodriguez, the officer, without making any comments or threats, quickly jerked the
plaintiffs arm high up to his shoulder. Here, the evidence showed that Allison did
significantly more than merely attempt to briefly jerk Sutherlands arm. Rather,
after Sutherland was already secured on the ground, Allison insulted Sutherlands
heritage, told him that he would teach him a lesson, and repeatedly yanked and
27
pulled on Sutherlands arm. Perez and Allison then left Sutherland to suffer with a
broken arm cuffed behind his back for nearly an hour.
Allison might claim that he was trying to jerk Sutherlands arm upward, but
mistook the physical impossibility of being able to move Sutherlands arm for
intentional resistance. Such an explanation defies common sense unless one were
to believe that Mr. Sutherland had super-strength in his right arm that was
mysteriously lacking from the left. At the very least, however, there are issues of
fact as to such a claim based upon the following evidence: Allisons unprovoked
aggression and racial hostility; the feel and appearance of Sutherlands arm, which
Allison observed visually and should have detected by touch; Sutherland going
limp to the ground immediately prior to any perceived resistance; Sutherland
informing Allison over and over about the condition of his arm; and the amount of
time Allison continued to pull on Sutherlands damaged arm after he was already
secured on the ground.
The Davis court distinguished Rodriguez for similar reasons: as opposed to
the one brief incident in Rodriguez, Davis involved several incidents of
intentionally grabbing, pushing, and pulling of the arrestees arm after he was
detained (same as the repeated yanking for several minutes in the instant case);
unlike in Rodriguez, in Davis the arrestee informed the officer almost immediately
upon the arresting procedures that he had a bad shoulder (same as the instant case);
28
and the officer in Davis intentionally applied force on the arrestees injured
shoulder so as to inflict further pain (similar to Allison using a racial epithet and
threatening to teach Sutherland a lesson before beginning to repeatedly yank on the
bad arm). See Davis, 451 F.3d at 767-68.
6
Accordingly, the Davis court reversed
the summary judgment and held that there was a triable issue of fact on the issue of
excessive force.
In addition to Rodriguez, the trial court also misapplied the holding in
Secondo v. Campbell, 327 Fed. Appx. 126 (11th Cir. 2009), which is
distinguishable for many of the same reasons. Unlike here, the Secondo officers
had nothing but the word of the arrestee about the existence of the preexisting
condition and could not otherwise verify his claims. Id. at 128. More importantly,
the police officers in Secondo only engaged in a single action of standard behind
the back handcuffing, which was executed in a matter of seconds. Id. The cuffs
were removed within a few minutes as opposed to three quarters of an hour. Id.
Thus, even if the handcuffing took the same amount of time as was used in

6
The plaintiff in Davis was also thrown in a dog cage for a short period of time
before being transferred to a police car. Davis, 451 F.3d at 767. The Court,
however, did not consider this factor in distinguishing Rodriguez, but merely
focused on the differences relative to notice of the preexisting condition, the
repetitiveness of the excessive force, and the length of the ordeal. Id. To the
extent that the plaintiffs placement in a dog cage is read to be an integral part of
the decision, for purposes of an excessive force analysis, it is similar to Allison and
Perez extending Sutherlands ordeal by keeping his hands cuffed behind his back
for a sustained period of time after breaking his arm.
29
Rodriguez and Secondo, this case is still materially different because of the
extraordinary length of time that Sutherland spent in agony from his arms
remaining cuffed behind his back after Allison broke his arm. Finally, both
Rodriguez and Secondo involved plaintiffs with preexisting injuries that led to
more severe injuries than would normally occur from the use of a common, non-
excessive handcuffing technique. Secondo, 327 Fed. Appx. at 128; Rodriguez, 208
F. 3d at 1352.
The trial courts reliance on Rodriguez and Secondo sheds light on the
courts misunderstanding of the difference between the preexisting condition of
those plaintiffs and that of Sutherland. To be clear, Allison and Perez should have
taken the state of Sutherlands arm into account when detaining him. The presence
and obviousness of the deformity, however, is relevant to further demonstrate the
excessiveness of leaving Sutherlands arms behind his back for three quarters of an
hour, as well as to demonstrate the additional pain Sutherland experienced during
the cuffing, even before the break.
7
The preexisting injury does not, however,
make Sutherland an egg-shell plaintiff as far as the break itself; there is no record
evidence that the preexisting condition that limited Sutherlands range of motion
made it so that his arm would sustain fractures or breaks from any less force than

7
The preexisting deformity is likewise relevant in further demonstrating deliberate
indifference, discussed infra.
30
would be required to break a perfectly healthy arm. This factor alone makes the
holdings in Rodriguez and Secondo inapplicable to the case at hand.
Here, the technique that Allison used in handcuffing Sutherland would not
be considered reasonable or de minimis even if Sutherland was not burdened by a
preexisting injury. As a matter of law, an officers constant pulling, twisting, and
yanking of a persons arm with such force as to actually break the bone is not a
reasonable amount of force when the person being arrested is docile and thereby
not a threat.
8
Smith v. Mattox, 127 F.3d 1416, 1420 (11th Cir. 1997). Although the
use of force that would have been deemed reasonable had this been an ordinary
handcuffing procedure might have caused Sutherland more pain and suffering than
a person with no disability, there is no evidence tending to show that Sutherlands
bone was more fragile or more susceptible to being broken or that it took any lesser
amount of force to break his bone than it would have to break a perfectly healthy
arm. Sutherlands arm broke as a result of the amount of force Allison applied in
order to teach him a lesson regardless of the fact that he had a disability.
Like Davis, Smith is another case with remarkably similar facts. In Smith,
this Court held that the force great enough to cause a broken arm is excessive even

8
After Sutherland went limply to the ground, two other officers held him in place
by his back, shoulders, and neck, thereby ensuring that there would be no physical
harm to the officers. At that point he was fully secured on the ground and in the
deputies physical custody.
31
when inflicted while restraining a previously fractious arrestee. Id. at 1420. In that
case, the arrestee raised a bat in a threatening posture towards law enforcement
after being approached by a uniformed officer. Id. at 1418. Once officers drew
their weapons, the arrestee dropped the bat and ran from the officers to evade
arrest. Id. When the officers caught up with the arrestee and ordered him to get on
the ground he docilely complied with their request. Id. The officer then put his
knee in the arrestees lower back and began pulling his left arm behind his back to
fasten the handcuffs in a way that caused discomfort. Id. Although the arrestee
complained of the discomfort, the officer continued with the handcuffing. Id.
Then, with a grunt and a blow the officer broke the arrestees arm. Id. The Court
held that despite the arrestees previous resistance, threats to the officer, and
attempts to flee, the force that the officer used was unnecessary and excessive
when it came time to restrain him. Id. at 1420. In so holding, the Court
acknowledged that even in the absence of caselaw on point, the plaintiff was able
to show that by breaking his arm, the defendant officers conduct was so far
beyond the hazy border between excessive and acceptable force that [he] had to
know he was violating the Constitution. Id. at 1419.
The facts in this case are even farther beyond that hazy border between
excessive and acceptable force. Here, as in Smith, Sutherland went to the ground
without resistance (by Allisons own words, Sutherland went limp). Unlike Smith,
32
Sutherland never violently threatened the officers, attempted to flee, or actively
resisted arrest. Moreover, Allisons efforts were more severe than simply one hard
pull. Rather, Allison pulled, twisted, and yanked Sutherlands arm with as much
force as was required to break his bone. The severity of the break, which
ultimately led to emergency surgery, a week long stay in the hospital, and
permanent nerve damage, demonstrates just how much force Allison actually
exerted on Sutherlands arm.
Sutherland introduced evidence that as a result of Allison breaking his arm,
he sustained nerve damage. The result is that, nearly three years after the incident,
Sutherland no longer has any movement in his pinky finger and his passive range
of motion in his right arm has been reduced by half as compared to the passive
range of motion prior to the incident. In the absence of evidence showing that
Sutherlands condition made him more susceptible to breaks from lesser force,
there are only two possible explanations for his permanent injuries: 1) the force
from Allisons repeated yanking and pulling, which was so severe that it resulted
in the break or; 2) the after-effects of the officers leaving Sutherland with his
broken, and previously damaged, arm behind his back for nearly forty-six minutes.
Under either scenario, or combination thereto, the Defendant officers violated
Sutherlands clearly established right to be free from excessive force.
33
B. Sutherland Sufficiently Established that
Allison and Perez Also Violated his Constitutional
Right to be Free from Excessive Force by
Slamming him Against a Van and then Leaving his
Hands Cuffed Behind his Back for Forty-Six
Minutes After Breaking his Arm Despite his
Repeated Pleas for Help
The infliction of force after an officer has been informed of an existing
injury or condition and after an arrestee has been subdued or arrested constitutes
excessive force. Lee v. Ferraro, 284 F.3d 1188, 1199 (11th Cir. 2002) (finding
that there is no reason, let alone any legitimate law enforcement need, for an
officer to slam an arrestee into a car after they were secured and placed in
handcuffs). Once an arrestee has been fully secured, the use of force is wholly
unnecessary to any legitimate law enforcement purpose. Id. at 1199. The use of
force against a handcuffed and restrained arrestee is objectively unreasonable and
clearly unlawful. Id. at 1200.
Here, in addition to the excessive force that was used on Sutherland when he
was lying face down on the pavement while officers were making the arrest, he
was stood up after he was cuffed and slammed against his van.
9
This Court
describes the act of slamming a handcuffed and subdued arrestee as being
entirely unnecessary and excessive. Id. Furthermore, while Sutherland remained

9
Although Sutherland did not sustain great injury as a result of being slammed
into the car, the Eleventh Circuit has held that the lack of injury does not alone
render the force used by officers de minimis. Lee v. Ferraro, 284 F.3d 1188, 1200
(11th Cir. 2002).
34
cuffed, he again explained to the deputies the disability of his arm and told them of
the excruciating pain he was experiencing on at least three separate occasions, yet
he was left in the cuffs in the back of a police car for over 45 minutes. At one
point, Perez went so far as to ask Sutherland about the handicapped parking permit
on his car. Even after Sutherland told him that he received the permit because of
his injured arm, Perez continued to ignore his pleas for relief.
All of these actions, taken after Sutherland was arrested and in custody,
further demonstrate that the officers conduct was excessive, objectively
unreasonable, and done for the sole purpose to cause Sutherland pain and to teach
him a lesson.
Based on the foregoing, the trial court committed reversible error when it
granted Defendants/Appellees Motion for Summary Judgment on Sutherlands
claims of excessive force.
II. THE DISTRICT COURT ERRED IN GRANTING
ALLISON AND PEREZ SUMMARY JUDGMENT ON
SUTHERLANDS DELIBERATE INDIFFERENCE
CLAIM
The trial court also erred by granting summary judgment in favor of Allison
and Perez on Sutherlands claims for deliberate indifference. In reaching its
decision, the court once again failed to examine the facts in a light most favorable
35
to Sutherland which showed that Allison and Perez were deliberately indifferent to
his serious medical needs.
The claim of deliberate indifference has its nexus in the constitutional right
to be free from the unnecessary and wanton infliction of pain. Brown v. Hughes,
894 F.2d 1533, 1537 (11th Cir. 1990) (citing Estelle v. Gamble, 429 U.S. 97, 104,
97 S.Ct. 285, 291 (1976)). To prevail on a claim for deliberate indifference, a
plaintiff must prove both an objectively serious medical need and that a
Defendant acted with deliberate indifference to that need. Burnette v. Taylor, 533
F.3d 1325, 1330 (11th Cir. 2008). A serious medical need [is] one that is
diagnosed by a physician as requiring treatment or one that is so obvious that a lay
person would recognize the need for medical treatment. Id. (citing Farrow v.
West, 320 F.3d 1235, 1243 (11th Cir. 2003)). Here, the trial court acknowledged
that Sutherland introduced sufficient evidence that the extent of his injury
constitutes an objectively serious need. (R. 35) Thus, the only issue for the court
was whether the facts, when taken in a light most favorable to Sutherland, showed
that Allison and Perez acted with deliberate indifference to that objectively serious
medical need.
To establish deliberate indifference, a plaintiff must show that a Defendant
had subjective knowledge of the risk of serious harm and disregarded that risk by
conduct that is greater than gross negligence. Burnette, 533 F.3d at 1330 (citing
36
Bozeman v. Orum, 422 F.3d 1265, 1272 (11th Cir. 2005)). Whether a particular
defendant had subjective knowledge of the risk of serious harm and disregarded
that risk is a question of fact that can be inferred from circumstantial evidence,
including the obviousness of the risk. Goebert v. Lee County, 510 F.3d 1312, 1327
(11th Cir. 2007). Even when the resulting harm is limited to unnecessary pain and
suffering, a plaintiff states a prima facie case of deliberate indifference by showing
an unexplained delay of hours between sustaining a broken bone and receiving
medical treatment. Brown, 894 F.2d at 1538; Harris v. Coweta County, 21 F.3d
388, 393-94 (11th Cir. 1994) (citing Brown).
Sutherland presented more than enough evidence from which a fact finder
could conclude that both Allison and Perez had knowledge of and acted with
deliberate indifference towards Sutherlands serious medical condition and need
for assistance. See Brown 894 F.2d at 153839 (11th Cir. 1990) (noting that the
plaintiffs limp and then hop on one leg, foot swelling, and request for medical
attention created an issue of fact as to whether the defendant knew of the plaintiffs
broken foot). In Brown, the plaintiff was a prisoner who suffered a broken foot
after being attacked by another inmate. Brown, 894 F.2d at 1536. The plaintiff did
not see a doctor for nearly six hours. The plaintiff filed numerous claims,
including deliberate indifference against, among others, the officers who the
plaintiff complained to immediately thereafter. Id. at 1535 This Court explained:
37
With this type of injury, it may be that deliberately indifferent delay,
no matter how brief, would render defendants liable as if they had
inflicted the pain themselves. Deliberately inflicted pain, as with an
electric cattle prod, does not become unimportant and unactionable
under the eighth amendment simply because the pain produced is only
momentary. Even if we were to recognize as de minimus delays of a
few seconds or minutes, a deliberate delay on the order of hours in
providing care for a serious and painful broken foot is sufficient to
state a constitutional claim.
Id. at 1538. Similar to the plaintiff in Brown, Sutherland had to wait
approximately 4 hours before obtaining medical treatment for his broken arm.
However, this case is even more egregious because, unlike the defendants in
Brown, Allison and Perez were directly responsible for the injury. Moreover,
Appellees greater than gross negligence is demonstrated by the fact that they not
only failed to obtain medical attention for the broken arm, but left Sutherland with
his hands behind his back for nearly an hour, thereby exacerbating the injury and
exponentially increasing his pain.
Sutherland introduced evidence that neither Allison nor Perez offered him
medical attention at any point during their encounter. Instead, Sutherland had to
repeatedly ask for medical help and such requests were either ignored or blatantly
refused. Sutherlands repeated pleas, his loss of consciousness, swollen arm, and
handicap parking permit were but a few of several objective indicators
demonstrating his serious medical condition and need for immediate medical
attention. Both Allison and Perez knew that the handcuffs, which stretched
38
Sutherlands broken arm behind his back, were in a position which caused him
agonizing pain and discomfort, yet they did nothing for almost an hour. It was
only right before transporting Sutherland to jail that Allison let him out of the
police car and moved his right arm from the back to the front before reapplying the
handcuffs. Allison and Perez did not contact paramedics, take Sutherland to the
hospital, or even check Sutherlands arm after his initial requests for medical help.
Instead, they dumped Sutherland at the jail without a single word about his
condition.
In granting Appellees Motion for Summary Judgment, the trial court noted
that Sutherland failed to meet his burden to show that Defendants Allison and
Perez had subjective knowledge of his injurygiven that there is no dispute that
they offered him paramedic help and he refused. (R. 35, p. 16). The court further
noted that Sutherland testified thathe declined needing paramedics to come to
the scene. (R. 35, p. 15). These findings ignore Sutherlands testimony that he
was never offered any medical help whatsoever and completely distort
Sutherlands testimony that although he did not specifically ask for paramedics, he
repeatedly asked for medical help. (R. 23-1, p. 59, lines 1-10)
The court also disregarded the evidence that in the immediate aftermath of
having his arm broken, Sutherland briefly lost consciousness. This alone should
have prompted Allison and Perez to get Sutherland medical attention. Instead,
39
they slammed him into a van. Finally, the trial court found that, as a matter of law,
Allisons and Perezs conduct did not constitute deliberate indifference because
even under Sutherlands version of events, the indifference only lasted one hour
before the officers ultimately moved Sutherlands handcuffs and took him to jail.
This ignores the fact that Defendants never took any steps to obtain medical
treatment. By the time they were pulling away from the scene of the arrest,
however, Allisons and Perezs deliberate indifference was established even if they
had taken Sutherland to the hospital instead of jail. See Brown, 894 F.2d at 1539
(finding that even where a defendant ultimately provides for medical care on the
same day, the case for deliberate indifference is established by the unexplained
delay of hours).
Based on the foregoing, the trial court committed reversible error when it
granted Defendants/Appellees Motion for Summary Judgment on Sutherlands
claims of deliberate indifference.
Conclusion
Based on the foregoing, this Court should reverse the order granting
summary judgment in favor of Appellees and remand the case for trial.
40
Certificate of Compliance
I hereby certify that this brief complies with the type-volume limitation set
forth in Fed. R. App. P. 32(a)(7)(B) and contains 10,151 words. This brief
complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type
style requirements of Fed. R. App. P. 32(a)(6) and has been prepared using 14
point Times New Roman.
Certificate of Service
I hereby certify that a true and correct copy of the Initial Brief of Appellant,
Norrel Sutherland, was mailed to Fred H. Gelston, 601 N. Dixie Highway, Suite C,
West Palm Beach, Florida 33401 on this 26th day of August, 2010.
CONRAD & SCHERER
Attorneys for Appellant
633 South Federal Highway
Fort Lauderdale, Florida 33301
Telephone: (954) 462-5500
Facsimile: (954) 463-9244

BY:
DANIEL S. WEINGER
Florida Bar No. 172900
dweinger@conradscherer.com
GREGORY R. BARTHELETTE
Florida Bar No.: 791296
gbarthelette@conradscherer.com