UNITED STATES DISTRICT COURT

NORTHERN DISTRICT COURT OF FLORIDA

PENSACOLA DIVISION

SHELDON LEE HUTCHINS,

Plaintiff,

v. CASE NO. 3:20-cv-5952/MCR/ZCB

DAVID MICHAEL ROWELL, et al.,

Defendants.

____________________________/

DEFENDANT JOHN PENDLETON II MOTION TO DISMISS 

PLAINTIFF’S FIFTH AMENDED COMPLAINT 

 

Defendant John Pendleton, pursuant to Fed. R. Civ. Pro. 12(b)(6) and N.D. 

Fla. Local R. 7.1 moves to dismiss Plaintiff’s Fifth Amended Complaint (ECF 30) 

and in support states:

As set for in Defendants’ Hays, Rowell, Schultz, and Campbell’s Motion to 

Dismiss (ECF 44)1 Plaintiff fails to state a claim upon which relief can be granted 

as all force allegedly utilized by Defendant Pendleton against Plaintiff was 

reasonable under the circumstances he confronted. Specifically, as it relates to 

Defendant Pendleton, Plaintiff alleges the following acts constituted excessive 

force:

1. Participated in restraining Plaintiff and holding him down. [ECF 30, pg. 13].

1 Defendant Pendleton incorporates the argument and memorandum section 

of Doc 44 as if fully set forth herein. 

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2. Participated in placing g Plaintiff in the restraint chair. [Id.]

3. Stuck the Plaintiff twice in the face causing the plaintiff loose bodily fluids

from his nose and mouth. [Id.]

As alleged in the Fifth Amended Complaint, and set forth in Exhibit A 

thereto, from the time Plaintiff arrived at the jail through the time he was placed 

in an ambulance to be transported for medical care, Plaintiff maintained a 

plastic baggie of drugs in his mouth and repeatedly ignored commands to spit it 

out from multiple deputies. When looking at the relationship between the need 

for and the amount of force used, federal courts have routinely held that officers 

can use a higher level of force to prevent an arrestee from swallowing or 

ingesting drugs. Johnson v. Rogers, No. 3:10-cv-50-wkw, 2012 WL 3231327, at 

*8 (M.D. Ala. July 11, 2012) (a chokehold was not unconstitutional when it was 

believed a suspect had crack cocaine in his mouth); German v. Sosa, 399 Fed. 

Appx. at 557; Williams v. Bramer, 180 F.3d 699, 704 (5th Cir. 1999) (an officer 

can search a suspect's mouth for drugs); United States v. Caldera, 421 F.2d 152, 

153 (9th Cir. 1970) (officers may use reasonable force to prevent a suspect 

attempting from swallowing drugs); Espinoza, 278 F.2d at 804 (federal officers 

who, without a warrant, obtained drug evidence from defendant's mouth as he 

was attempting to swallow and destroy the evidence “by grabbing the defendant 

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about the throat,” and “attempting to pry open his mouth by placing pressure 

against his jaw and nose,” defendant's claim of excessive force was meritless).

In addition, Defendant Pendleton’s use of distractionary strikes to 

plaintiff’s person were likewise in direct response to Plaintiff’s physical 

resistance as deputies were attempting to Plaintiff in a restraint chair. As Deputy 

Pendleton was holding Plaintiff’s head area while other deputies attempted to 

apply soft restraints to secure Plaintiff, Plaintiff broke free of deputies hold and 

grabbed Deputy Pendleton’s right wrist. [ECF 30-1 pg. 6]. This is not a case where 

Deputy Pendleton used gratuitous force against a non-resisting, handcuffed 

Plaintiff, situations in which the Eleventh Circuit has found punching an arrestee 

to be unconstitutional. Hadley v. Gutierrez, 526 F.3d 1324, 1333 (11th Cir 

2008). Rather, Defendant Pendleton’s use of two distractionary strikes were a 

direct result of Plaintiff’s physical resistance, and use of physical force against 

Deputy Pendleton’s lawful efforts to restrain Plaintiff after he refused lawful 

orders to spit out a bag of methamphetamine from his mouth. 

As all force utilized against Plaintiff was reasonable under the 

circumstances, Defendant Pendleton is entitled to qualified immunity as to all 

claims brought against him. 

 

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Conclusion 

All use of force by Defendant Pendleton was reasonable under the 

circumstances. Further, Defendant Pendleton is entitled to qualified immunity 

as the law was not clearly established that the force used by him was clearly 

excessive under the circumstances. 

Respectfully submitted this 19th day of January 2023. 

/s/ Zackery A. Scharlepp 

Zackery A. Scharlepp, (FBN: 0085374)

zascharlepp@coppinsmonroe.com

jclark@coppinsmonroe.com

cmarchena@coppinsmonroe.com

COPPINS MONROE, P.A.

1319 Thomaswood Drive, Tallahassee, FL 32308

Office: 850-422-2420 

Fax: 850-422-2730

ATTORNEYS FOR DEFENDANT

JOHN ROBERT PENDLETON II

CERTIFICATE OF SERVICE

Pursuant to Federal Rule of Civil Procedure 5(b)(3) and N.D. Florida Local 

Rule 5.1, this document is being filed electronically and service shall be through 

the Court's transmission facilities on all persons appearing before this Court. 

/s/ Zackery A. Scharlepp 

 Attorney

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