Sutherland Reply Brief (11th Cir.)

8/10/2019 Sutherland Reply Brief (11th Cir.)

1/15

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.

/

___________________________________

REPLY BRIEF OF APPELLANT,

NORREL SUTHERLAND___________________________________

DANIEL S. WEINGER

Florida Bar No. 172900

[email protected]

GREGORY R. BARTHELETTE

Fla. Bar No.: 791296

[email protected]

CONRAD & SCHERER, LLPAttorneys for Appellant

633 South Federal Highway

Fort Lauderdale, Florida 33301

Telephone: (954) 462-5500

Facsimile: (954) 463-9244


2/15


3/15

iii

Table of Authorities

Cases

Bozeman v. Orum,

422 F.3d 1265 (11th Cir. 2005) .................................................................. 5Brown v. City of Hialeah,

30 F. 3d 1433 (11th Cir. 1994) ................................................................... 5

Brown v. Hughes,

894 F.2d 1533 (11th Cir. 1990) .................................................................. 9

Copeland v. Stebco Products Corp.,

738 N.E.2d 199 (Ill. App. Ct. 2000) ........................................................... 3

Davis v. Williams,

451 F.3d 759 (11th Cir. 2006) ................................................................ 4, 8Draper v. Reynolds,

369 F.3d 1270 (11th Cir. 2004) .................................................................. 6

Evans v. Stephens,

407 F.3d 1272 (11th Cir. 2005) .................................................................. 5

Hoffman v. Allied Corp.,

912 F.2d 1379 (11th Cir. 1990) .................................................................. 2

Keal Driveway Co. v. Car General Ins. Corp.,

145 F.2d 345 (5th Cir. 1944) ...................................................................... 3Murphy v. International Robotic Systems, Inc.,

766 So. 2d 1010 (Fla. 2000) ....................................................................... 3

Reeves v. Sanderson Plumbing Prods., Inc.

530 U.S. 133 (2000) .................................................................................... 7

Rodriguez v. Farrell,

280 F.3d 1341 (11th Cir. 2002) .................................................................. 8

Secondo v. Campbell,

327 Fed. Appx. 126 (11th Cir. 2009) .......................................................... 8Smith v. Mattox,

127 F.3d 1416 (11th Cir. 1997) .................................................................. 4

Tatum v. Jackson,

2009 WL 3633975 (S.D.N.Y.) .................................................................... 7


4/15

iv

U.S. v. Urban,

404 F.3f 754 (3rd Cit. 2005) ....................................................................... 8

Wilson v. United States,

162 U.S. 613, 16 S.Ct. 895 (1896) .............................................................. 8

Other Authorities

75 Am. Jur. 2d Trial444 (2010) ................................................................... 3

Rules

Fed. R. App. P. 32 ......................................................................................... 10


5/15

1

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.

(I.B.) Appellants Initial Brief

(A.B.) Appellees Joint Answer Brief

All emphasis is supplied by counsel unless otherwise indicated.


6/15

2

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

For the most part, Sutherland relies upon the arguments raised in his Initial

Brief as to this issue. However, a few of the arguments raised by Allison and

Perez in their Joint Answer Brief warrant a response.

Defendants Answer Brief provides a textbook example of an improper

argument in favor of summary judgment. Defendants expend nearly one third of

their argument section (a little more than two out of seven pages) setting forth the

standards a court must follow in granting summary judgment, and spend the

remaining two thirds of their argument ignoring said standard. For example, citing

this Courts decision in Hoffman v. Allied Corp., 912 F.2d 1379, 1383 (11th Cir.

1990), Defendants acknowledge that in ruling on a motion for summary judgment

a court must view all evidence most favorably toward the non-moving party, and

all justifiable inferences are to be drawn in the non-moving partys favor. (A.B.

p. 7.) Defendants go on to assert, time and again, that Sutherlands fact section

reads like a closing argument. Ironically, by arguing as much, Defendants

implicitly concede that summary judgment was inappropriate, as a closing

argument is simply an attorneys presentation of the evidence in a light most


7/15

3

favorable to, and with all reasonable inferences drawn in favor of, their client. See

Keal Driveway Co. v. Car General Ins. Corp., 145 F.2d 345, 345 (5th Cir. 1944)

(holding that attorneys ordinarily have the right to argue to the jury their own

conception of what reasonable deductions should be drawn from facts in

evidence). See also Murphy v. International Robotic Systems, Inc., 766 So. 2d

1010, 1028 (Fla. 2000) (recognizing that in making a closing argument, attorneys

must confine their argument to the facts and evidence presented to the jury and all

logical deductions from the facts and evidence); 75 Am. Jur. 2d Trial444 (2010)

(citing Copeland v. Stebco Products Corp., 738 N.E.2d 199 (Ill. App. Ct. 2000),

for the proposition that the purpose of closing argument is to draw reasonable

inferences from the evidence and assist the jury in fairly arriving at a verdict based

on the law and the evidence).

In his Initial Brief, Sutherland did nothing more than set forth the record

evidence supporting his claims without the need for even drawing many

inferences, be they reasonable or otherwise. The only inferences Sutherland seeks

drawn in his favor are those relating to whether Defendants acted in an objectively

reasonably manner. As discussed infra, those inferences are supported by both

Sutherlands and the officers testimony.

Substantively, Defendants completely ignore the heart of Sutherlands

argument; namely, that the trial courts entire analysis is based on the fatally


8/15

4

incorrect premise that Sutherland is an egg-shell plaintiff, a theory that is not

supported by any direct evidence and can only be adopted if drawing an inference

in Defendants favor. Defendants claim that the handcuffing in this case was

routine. (A.B. pp. 9, 11-12.) As discussed infra, the record does not support this

contention. However, even accepting for the sake of argument that the

handcuffing were routine, unless Sutherland were an egg-shell plaintiff, a

reasonable amount of force could neverhave resulted in a broken arm based under

the analysis in Smith v. Mattox, 127 F.3d 1416 (11th Cir. 1997), in which this

Court held that an officer breaking an arm during an arrest is so far beyond the

hazy border between excessive and acceptable force that [he] had to know he was

violating the Constitution. Id. at 1419.

Even if Sutherland were an egg-shell plaintiff, the evidence in the record

establishes an issue of fact as to when the officers first became aware of his

condition, which goes directly to whether the force they used was objectively

reasonable. Defendants repeatedly ignore Sutherlands testimony in this regard.

For example, in trying to distinguish Davis v. Williams, 451 F.3d 759 (11th Cir.

2006), Defendants assert that the record evidence is clear that they were not told

about Sutherlands injury until after the handcuffing and that Sutherland was only

subjected to a single, routine instance of handcuffing. (A.B. p. 9.) This ignores

Sutherlands repeated testimony that he told the officers about his arm at the very


9/15

5

beginning of a handcuffing process that lasted for several minutes. (R. 23-1, p. 42,

line 25, p. 43, lines 1-2; , p. 45, lines 1-8.) Moreover, this ignores Allisons own

admission that the handcuffing lasted for a full minute. (R. 22-3, p. 51, lines 15-

18.)

Another instance of Defendants improperly characterizing the evidence in

their own favor is their claim that Sutherland was subjected to a routine arrest.

(A.B. pp. 11-12.) This completely disregards Sutherlands testimony that despite

his continued pleas for mercy, Officer Allison kept getting angrier and angrier until

he unleashed a profanity laced tirade, which culminated in calling Sutherland a

fking Haitian and telling Sutherland that he was going to teach [him] a

lesson. (R. 23-1, p. 45, lines 1-8.) This testimony alone creates an issue of fact as

to whether Defendants use of force was objectively reasonable. 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). If Sutherlands testimony is

true, as it must be in opposition to summary judgment, it describes an arrest that is


10/15

6

anything but routine. At the very least, Sutherlands testimony creates an issue of

fact as to whether Defendants use of force was objectively reasonable.

Defendants reliance onDraper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004),

is misplaced and generally highlights Defendants failure to view the record

evidence in a light most favorable to Sutherland. The Drapercourt held that the

single use of a taser gun causing a one-time shocking and resulting in no serious

injury was reasonable in light of video evidence that prior to being tasered, the

arrestee was belligerent, gestured animatedly, continuously paced, appeared very

excited, and spoke loudly even after repeated and calmly stated warnings from the

arresting officer that he would be taken to jail if his aggressive behavior continued.

Id. at 1273, 78. Conversely, in the instant case, the record evidence does not show

a short and quick handcuffing by a calm and collected officer. Rather, the

evidence viewed in a light most favorable to Sutherland shows a decidedly long

and drawn out handcuffing process that began with Allison making a racial epithet

before persistently yanking and pulling on Sutherlands deformed arm, all while

unleashing a profanity laced tirade. Moreover, unlike the plaintiff in Draper,

Sutherland didsuffer permanent injuries as, in addition to suffering a broken arm,

Sutherland also sustained further nerve damage from the incident: he no longer has

any movement in his pinky finger and his passive range of motion in his right arm


11/15

7

has been reduced by half as compared to his passive range of motion prior to the

incident. (R. 27-1, pp. 14-15, 6)

Finally, Defendants ignore the inconsistencies between the internal

investigation and the testimony in this case, including Allison and Perez changing

their version of events, as discussed in great detail in the fact section of the Initial

Brief. (I.B. pp. 10-12.) These inconsistencies alone create a reasonable inference

that Allison and Perez initially lied about the events in order to cover up their

misconduct. SeeTatum v. Jackson, 2009 WL 3633975 (S.D.N.Y.) (citingReeves

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


12/15

8

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)).

Plaintiff relies upon the analysis contained in the Initial Brief of Secondo v.

Campbell, 327 Fed. Appx. 126 (11th Cir. 2009), Davis v. Williams, 451 F.3d 759

(11th Cir. 2006), and Rodriguez v. Farrell, 280 F.3d 1341 (11th Cir. 2002), in

response to Defendants misapplication of same.

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

For the most part, Sutherland relies upon the arguments raised in his Initial

Brief as to this issue. However, a few of the argument raised by Allison and Perez

in their Joint Answer Brief warrant a response.

Once again Defendants present a myopic view of the record evidence in an

attempt to divert the Courts attention away from any and all facts showing that

summary judgment was improper on Plaintiffs claim of deliberate indifference.

Defendants assert that Sutherland refused medical treatment at the scene despite


13/15

9

his testimony that he asked Allison and Perez for medical assistance on numerous

occasions. (R. 23-1, p. 55, lines 21-25, p. 56, lines 1-8, p. 58, lines 19-24. p. 59,

lines 1-10, p. 64, lines 7-8.) Defendants also argue that because Plaintiff was

ultimately offered medical treatment immediately before being released from jail,

no deliberate indifference occurred. Defendants cite no support for this

proposition and fail to set forth how such an argument jibes with the decision in

Brown v. Hughes, 894 F.2d 1533 (11th Cir. 1990), where this Court held that with

an injury such as a broken limb:

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 aconstitutional claim.

Id. at 1538.

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.


14/15

10

Conclusion

Based on the foregoing, as well as the reasons more specifically set forth in

Sutherlands Initial Brief, this Court should reverse the order granting summary

judgment in favor of Appellees and remand the case for trial.

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 2,505 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 15th day of October, 2010.


15/15

11

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

[email protected]

GREGORY R. BARTHELETTE

Florida Bar No.: 791296

[email protected]

Sutherland Reply Brief (11th Cir.)

Documents

Transcript of Sutherland Reply Brief (11th Cir.)