UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

MARY A. FOULKE, and

JACK YOUNG, JR., as

personal representatives for

the Estate of John C. Young,

Plaintiffs,

v. CASE NO. 3:20-cv-5506-MCR-EMT

SHERIFF DAVID MORGAN, in his

official capacity as Sheriff of Escambia

County; et al.,

Defendants.

_________________________________/

ORDER

Before the Court is Defendants’ Motion to Dismiss, ECF No. 13. On full 

consideration, the Court finds the motion is due to be granted.

I. Legal Standard

The Court accepts the allegations in the Complaint as true and construes them 

in the light most favorable to Plaintiffs. See Hunt v. Amico Props., L.P., 814 F.3d 

1213, 1221 (11th Cir. 2016). “To withstand a motion to dismiss under Rule 12(b)(6), 

a complaint must include ‘enough facts to state a claim to relief that is plausible on 

its face.’ ” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A 

‘claim has facial plausibility when the plaintiff pleads factual content that allows the 

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court to draw the reasonable inference that the defendant is liable for the misconduct 

alleged.’ ” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “Plaintiff[s’] 

allegations must amount to ‘more than labels and conclusions, and a formulaic 

recitation of the elements of a cause of action will not do.’ ” Id. (quoting Twombly, 

550 U.S. at 555). 

II. Background

The facts, accepted as true and construed in the light most favorable to 

Plaintiffs, are as follow. This case arises from the fatal police shooting of John C. 

Young. Mr. Young was a 65-year-old man who suffered from severe mental 

impairments including depression, suicidal ideation, and schizophrenia. He was 

5’ 7” tall and weighed 143 pounds. He lived alone in an apartment in Pensacola

Florida. Mr. Young’s apartment is located in a twelve-to-fifteen-foot-long 

breezeway off of a long hallway of other apartment units. No other units are located 

on this breezeway.

At approximately 3:49 a.m. on December 1, 2018, Mr. Young called 911 for 

help. In a flat affect, Mr. Young stated to the 911 dispatcher that he had just killed 

someone and that he was thinking about killing himself too. After being transferred 

to an Escambia County Sheriff’s Office (“ESCO”) 911 dispatcher, Mr. Young stated 

that he did not know the person he had killed, that he had used a meat cleaver as a 

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weapon to kill the person, that he had a gun, and that he wanted to kill himself and 

others. Mr. Young further informed the dispatcher that he was a black male and that 

he was in his bedroom. At approximately 3:55 a.m., Mr. Young told the 911 

dispatcher that the “police” had arrived and ended the call.

Eight ESCO officers, including Defendants Jacob Holloway, Daniel Weller, 

Luke McCracken, Joshua Lavoie, and James Barnes (collectively, the “Officer

Defendants”) arrived at Mr. Young’s apartment to conduct a welfare check of a 

person having a mental health crisis. Within minutes of the Officer Defendants’

arrival, Mr. Young lay dead just outside the threshold of his apartment after being 

shot twenty-seven times. Plaintiffs have neither video evidence nor testimony from 

third-party witnesses of what occurred between the Officer Defendants’ arrival and 

Mr. Young’s death. Consequently, only the Officer Defendants’ version of events is

available to Plaintiffs. That version of events is contained in the Florida Department 

of Law Enforcement’s Investigative Report of the Use of Deadly Force against Mr. 

Young (the “FDLE Report”). The Complaint outlines the FDLE Report’s factual 

allegations.

According to the FDLE Report, Holloway, trained as a Crisis Intervention 

Officer (“CIT”), made the command decisions for the welfare check to Mr. Young’s 

apartment. Holloway first attempted to call Mr. Young’s cell phone but was unable 

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to contact Mr. Young. Holloway then knocked on Mr. Young’s door. When Mr. 

Young opened the door, he was holding a meat cleaver in his right hand next to his 

side. Holloway was within a few feet of Mr. Young.

Weller was also a few feet away from Mr. Young and heard Holloway 

encourage Mr. Young to come outside to talk to the police. Weller observed Mr. 

Young with the meat cleaver at chest level and commanded Mr. Young to “drop it 

or I’ll shoot you.” When Mr. Young did not comply with Weller or Holloway’s 

verbal commands, Weller deployed multiple bean bag rounds from his shotgun at 

Mr. Young. According to Weller, Mr. Young did not respond to the bean bag rounds 

and remained standing and holding the meat cleaver at chest level.

McCracken was also within a few feet of Mr. Young. At or around the same 

time that Weller deployed the bean bag rounds, McCracken deployed a taser against 

Mr. Young. As with the bean bag rounds, the taser reportedly had no effect on Mr. 

Young.

After the ineffective use of the bean bag rounds and taser, McCracken and 

Lavoie observed either a box cutter or knife in Mr. Young’s left hand. As Weller 

attempted to transition from his shotgun to his taser, Mr. Young raised the meat 

cleaver over his head and threw it, striking Weller in the left leg between his thigh 

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and knee.

1 Weller fell “slightly backwards” and discharged his pistol at Mr. Young 

from the ground. At this time, McCracken, Lavoie, and Holloway also used their 

firearms against Mr. Young. Weller stood back up as he “finished firing his pistol at 

[Mr.] Young.”

Barnes was the highest-ranking ESCO officer on the scene. He was positioned 

a few feet away from Mr. Young and the other Officer Defendants. Barnes did not 

intervene or prevent the other Officer Defendants from shooting Mr. Young.

Mr. Young was shot twenty-seven times2 and was pronounced dead on the 

scene by Emergency Medical Services.3

Plaintiffs, the personal representatives for Mr. Young’s estate, bring claims

against Defendant David Morgan in his official capacity as Sheriff of ESCO (the 

“Sheriff”) and the Officer Defendants under 42 U.S.C. § 1983 for excessive force 

against the Sheriff (Count I), Holloway (Count II), Weller (Count III), McCracken 

(Count IV), and Lavoie (Count V), as well as a claim for failure to intervene against 

1 Fortunately, Weller was carrying a cell phone in his left pocket. The meat cleaver struck 

the cell phone instead of Weller’s flesh, leaving a cut on his cell phone case but only a red mark 

on his leg.

2 Mr. Young was struck by two rounds fired from Lavoie’s AR-15 rifle and twenty-five 

rounds fired from Weller’s, McCracken’s, and Holloway’s 9mm handguns.

3 The Complaint does not allege whether Mr. Young had, in fact, murdered an individual 

with the meat cleaver.

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Barnes (Count VI). Plaintiffs also raise claims under Title II of the Americans with 

Disabilities Act (“ADA”) (Count VII) and Section 504 of the Rehabilitation Act

(“RA”) (Count VIII) against the Sheriff for the failure to accommodate Mr. Young’s 

disability. Additionally, Plaintiffs raise state law claims for wrongful death against 

the Sheriff (Counts IX and X), Barnes (Count XI), Holloway (Count XII), Weller 

(Count XIII), McCracken (Count XIV), and Lavoie (Count XV). Defendants move 

to dismiss Plaintiffs’ Complaint in its entirety based on qualified immunity, statutory 

immunity, and for failure to state a claim.

III. Discussion

A. § 1983 Claims (Counts I–VI)

“The right to be free from unreasonable search and seizure is secured by the 

Fourth Amendment and ‘apprehension by the use of deadly force is a seizure.’ ” 

Daugherty v. Hurst, No. 1:17-cv-72, 2020 WL 5836554, at *5 (S.D. Ala. Sept. 30, 

2020) (quoting Tennessee v. Garner, 471 U.S. 1, 7 (1985)).4 Plaintiffs allege that 

Holloway, Weller, McCracken, and Lavoie used excessive and unjustified force 

against Mr. Young, that Barnes failed to intervene to prevent the unconstitutional 

use of force, and that the Sheriff was deliberately indifferent to the ESCO’s systemic 

4 The Fourth Amendment is applicable to the states through the Fourteenth Amendment. 

See Michigan v. Summers, 452 U.S. 692, 694 n.2 (1981).

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deficiencies regarding its officers’ uses of force that resulted in Mr. Young’s death. 

The Officer Defendants argue they are entitled to qualified immunity because the 

use of deadly force was objectively reasonable under the circumstances or, 

alternatively, because their conduct was not unlawful under clearly established law. 

Additionally, Barnes and the Sheriff argue that, absent an underlying use of 

excessive force, Plaintiffs’ § 1983 claims against them fail. In response, Plaintiffs 

argue they have sufficiently alleged violations of Mr. Young’s clearly established 

constitutional right to be free from excessive force and that Plaintiffs should have 

the opportunity to conduct discovery to dispute the Officer Defendants’ “selfserving” version of events contained in the FDLE Report. Plaintiffs further argue 

they have sufficiently alleged causal connections between the Sheriff and the 

violation of Mr. Young’s constitutional rights.

Based on the facts alleged in the Complaint, the Court finds the Officer 

Defendants are entitled to qualified immunity. The defense of qualified immunity 

“entitles [the Officer Defendants] to avoid liability for discretionary acts they 

undertook in their individual capacity so long as ‘their conduct [did not] violate[] 

clearly established statutory or constitutional rights of which a reasonable person 

would have known.’ ” Mann v. Joseph, 805 F. App’x 779, 782–83 (11th Cir. 2020)

(quoting Shaw v. City of Selma, 884 F.3d 1093, 1099 (11th Cir. 2018)). Because 

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Plaintiffs do not dispute that the Officer Defendants were acting within their 

discretionary authority during the incident in question, the Officer Defendants enjoy 

qualified immunity unless Plaintiffs allege facts that establish the Officer 

Defendants’ actions “violated a right protected by the Constitution and that the 

alleged constitutional right was clearly established at the time of the incident.” Id. at 

783 (internal citation omitted). To avoid dismissal, Plaintiffs must also “establish 

that [their] claims are facially plausible—that is, that [they] pleaded sufficient factual 

matter for [the Court] to draw a reasonable inference that the [Officer Defendants]

were liable for the alleged misconduct that [Plaintiffs’] alleged they committed.” Id. 

“The standard for whether the use of force was excessive under the Fourth 

Amendment is one of ‘objective reasonableness.’ ” Long v. Slaton, 508 F.3d 576, 

580 (11th Cir. 2007) (quoting Graham v. Connor, 490 U.S. 386, 386 (1989)). “An 

officer may only use deadly force against a person whom the officer reasonably 

perceives as posing an imminent threat of serious physical harm to the officer or 

others.” Gregory v. Miami-Dade Cty., Fla., 719 F. App’x 859, 866 (11th Cir. 2017) 

(citing Robinson v. Arrugueta, 415 F.3d 1252, 1256 (11th Cir. 2005) and McCormick 

v. City of Ft. Lauderdale, 333 F.3d 1234, 1246 (11th Cir. 2003)). In examining 

whether the Officer Defendants’ use of deadly force was reasonable, the Court 

recognizes that “police officers are often forced to make split-second judgments—

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in circumstances that are tense, uncertain and rapidly evolving—about the amount 

of force that is necessary in a particular situation.” Long, 508 F.3d at 580 (quoting 

Graham, 490 U.S. at 397). Consequently, the Court is “loath to second-guess the 

decisions made by police officers in the field.” Id. (quoting Vaughan v. Cox, 343 

F.3d 1323, 1331 (11th Cir. 2003)).

Plaintiffs allege (1) that Mr. Young was armed with a meat cleaver and 

standing a few feet from the Officer Defendants, (2) that he failed to comply with 

the Officer Defendants’ verbal commands to drop the meat cleaver, (3) that he was 

unaffected by less-lethal force, (3) that he threw the meat cleaver at Weller with 

enough force to cut Weller’s pant leg and his cell phone case, and (4) that he

remained armed with a knife or box cutter after throwing the meat cleaver. Based on 

these allegations, the Officer Defendants’ use of deadly force was objectively 

reasonable and did not violate Mr. Young’s Fourth Amendment rights. See Shaw v. 

City of Selma, 884 F.3d 1093, 1099 n.5 (11th Cir. 2018) (“If a reasonable officer 

could have believed that under the circumstances Shaw posed a threat of inflicting 

serious injury or death on him, the shooting was objectively reasonable regardless 

of whether Shaw had already committed a crime or was resisting or attempting to 

evade arrest.”); Penley v. Eslinger, 605 F.3d 843, 851 (11th Cir. 2010) (finding that 

the decedent’s “refus[al] to comply with repeated commands to drop his weapon . . . 

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support[ed] the conclusion that use of deadly force was reasonable); see also Estate 

of Larsen ex rel. Sturdivan v. Murr, 511 F.3d 1255, 1261–62 (10th Cir. 2008) (on 

summary judgment, affirming grant of qualified immunity to an officer who used 

deadly force against an agitated, suicidal man holding a large knife when the distance 

between the man and the officer was between seven and twenty feet). 

Plaintiffs nonetheless argue that they have sufficiently alleged a violation of 

Mr. Young’s Fourth Amendment rights because they “dispute Defendants’ selfserving version of the facts” and “characterizations of Mr. Young’s movements, 

threats and actions” as outlined in the FDLE Report and they believe that “[a]llowing 

Defendants to prevail on their version of the facts at this stage of proceedings would 

be tantamount to granting Defendants summary judgment without providing the 

Plaintiffs an opportunity for discovery to dispute Defendants’ version of events.” 

ECF No. 14 at 5, 11, 15–16. The Court disagrees. First, “the ‘driving force behind 

creation of qualified immunity doctrine was a desire to ensure that insubstantial 

claims against government officials [will] be resolved prior to discovery.’ ” Corbitt 

v. Vickers, 929 F.3d 1304, 1309 n.2 (11th Cir. 2019) (citation omitted). Plaintiffs’ 

argument is unavailing because they do not allege or otherwise identify any 

competing or contradictory facts that would undermine the FDLE Report’s version 

of events as recounted in the Complaint. Compare Harbert Int’l, Inc. v. James, 157 

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F.3d 1271, 1280–81 (11th Cir. 1998) (affirming denial of a plaintiff’s Rule 56[d]

5

motion in a qualified immunity case because the specific facts the plaintiff claimed 

would be revealed by further discovery were unlikely to “establish either that 

defendants acted outside the scope of their discretionary authority or that they had 

violated clearly established law”), with Estate of Todashev by Shibly v. United 

States, 815 F. App’x 446, 454–55 (11th Cir. 2020) (reversing denial of a plaintiff’s 

Rule 56(d) motion in a qualified immunity case where the plaintiff “made it clear 

that, based on the information that he has been able to obtain thus far, he believes 

that [the decedent] was more likely fleeing the apartment, instead of charging 

towards the officers, and that [the decedent] was shot in the back while attempting 

to escape”); see also Mighty v. Miami-Dade Cty., 659 F. App’x 969, 972–73 (11th 

Cir. 2016) (affirming denial of motion to dismiss in a qualified immunity case where 

the plaintiff alleged that officers fatally shot an unarmed man in the back as he 

attempted to retreat into his parents’ home because the allegations plausibly raised 

inference that the decedent “did not pose an immediate threat of serious harm when 

he was shot”). Plaintiffs have failed to sufficiently allege a violation of Mr. Young’s 

5 Harbert was decided under former Rule 56(f). Current Rule 56(d) “carries forward 

without substantial change the provisions of former subdivision (f).” Fed. R. Civ. P. 56, Advisory 

Committee notes to the 2010 amendments.

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constitutional rights and the Officer Defendants are therefore “entitl[ed] not to stand 

trial or face the other burdens of litigation.” See Gonzalez v. Reno, 325 F.3d 1228, 

1233 (11th Cir. 2003) (citation omitted).

Additionally, the only “fact” or “characterization” Plaintiffs seem to dispute

is whether Mr. Young threw the meat cleaver at Weller after being tased and struck 

with multiple bean-bag rounds. See ECF No. 14 at 11. Critically, however, Plaintiffs 

do not dispute that Mr. Young—at some point—threw the meat cleaver at Weller 

with enough accuracy and force to strike Weller and cut his pant leg and cell phone 

case after ignoring the Officer Defendants’ repeated commands to drop the weapon. 

The Complaint’s factual allegations therefore undercut Plaintiffs’ argument that the 

Officer Defendants’ use of deadly force was not objectively reasonable. And to the 

extent Plaintiffs dispute other, unspecified “facts” or “characterizations” in the 

FDLE Report, “the mere possibility that [the Officer Defendants] acted unlawfully 

is insufficient to survive a motion to dismiss.” See Mighty, 659 F. App’x at 972.

Finally, because the Complaint fails to sufficiently allege that Holloway, 

Weller, McCracken, and Lavoie used excessive force against Mr. Young, Plaintiffs’ 

§ 1983 claims against Barnes and the Sheriff also fail. See Knight ex rel. Kerr v. 

Miami-Dade Cty., 856 F.3d 795, 821 (11th Cir. 2017) (“There can be no policybased liability or supervisory liability when there is no underlying constitutional 

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violation.”); Sanchez v. Hialeah Police Dep’t, 357 F. App’x 229, 230 (11th Cir. 

2009) (“[T]here is no derivative liability for failing to intervene when the officer 

accused of excessive force is entitled to qualified immunity.”).

Accordingly, Defendants’ motion to dismiss Plaintiffs’ § 1983 claims is 

granted.

B. ADA & RA Claims (Counts VII–VIII)

“Under Title II of the ADA, public entities are prohibited from discriminating 

against individuals with disabilities or denying them services because of their 

disabilities.” Owens v. Sec’y, Fla. Dep’t of Corr., 602 F. App’x 475, 477 (11th Cir. 

2015).

6 Title II applies to police conduct during the arrest of a disabled person. See 

Bircoll v. Miami-Dade Cty., 480 F.3d 1072, 1085 (11th Cir. 2007). Plaintiffs raise 

claims for violations of the ADA and RA against the Sheriff, alleging the Officer 

Defendants failed to engage in de-escalation techniques or otherwise accommodate 

Mr. Young’s disability and instead unduly escalated his mental health disability and 

mental health crisis, proximately causing his death. Defendants argue that Plaintiffs’ 

6 “The standard for determining liability under the Rehabilitation Act is the same as the 

standard under the ADA.” Owens, 602 F. App’x at 477 (citation omitted); see Silberman v. Miami 

Dade Transit, 927 F.3d 1123, 1133–34 (11th Cir. 2019) (“[W]hatever we have said—or say now—

about Title II goes for § 504, and vice versa.”). Accordingly, as relevant to the instant motion, the 

standards under the RA and ADA are the same. For ease of reference, this order refers only to the 

ADA, without mentioning the identical standard under the RA.

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claims fail because the Complaint fails to allege that (1) Mr. Young was “disabled” 

under the ADA, (2) the Officer Defendants “actually knew” Mr. Young was 

disabled, (3) the Officer Defendants could reasonably accommodate Mr. Young’s 

disability under the “exigent circumstances” outlined in the FDLE Report, and (3)

the Sheriff engaged in intentional discrimination against Mr. Young.

The Court finds that Plaintiffs’ ADA and RA claims fail as a matter of law 

because the allegations show that exigent circumstances made accommodation of 

Mr. Young’s disability unreasonable.7 See Bircoll, 480 F.3d at 1085 (“[T]he question 

is whether, given criminal activity and safety concerns, any modification of police 

procedures is reasonable before the police physically arrest a criminal suspect, 

secure the scene, and ensure that there is no threat to the public or officer’s safety.”). 

Plaintiffs argue that Holloway’s crisis intervention services and training or other 

“specialized help” were not made available to Mr. Young. But, as alleged in the 

Complaint, Holloway and the other Officer Defendants had no opportunity to engage 

in de-escalation techniques or otherwise accommodate Mr. Young’s disability 

because the situation quickly escalated after Mr. Young opened the door holding a 

7 The Court assumes, without deciding, that Plaintiffs have sufficiently alleged that Mr. 

Young had a disability for purposes of the ADA. 

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meat cleaver.8 Once Mr. Young disregarded the Officer Defendants’ verbal 

commands, proved impervious to less-lethal force, and raised the meat cleaver in 

close proximity to the Officer Defendants, the immediate danger posed to the Officer 

Defendants’ safety curtailed any duty to further accommodate Mr. Young’s 

disability. See Vila v. Miami-Dade Cty., 65 F. Supp. 3d 1371, 1384 (S.D. Fla. 2014) 

(granting motion to dismiss ADA claims based on denial of accommodation in the 

course of an arrest where the mentally-ill arrestee “became increasingly agitated and 

erratic” and waiting for specially-trained backup “would have been both impractical 

and dangerous”); cf. Vos v. City of Newport Beach, 892 F.3d 1024, 1037 (9th Cir. 

2018) (finding further accommodation of the decedent’s disability was possible 

where the officers “had the time and opportunity to assess the situation and 

potentially employ . . . de-escalation, communication, or specialized help”). 

Defendants’ motion to dismiss Plaintiffs’ ADA and RA claims is therefore 

granted.

8 Based on the Plaintiffs’ allegations, it appears Holloway initially attempted to 

accommodate Mr. Young’s disability by trying to call Mr. Young and then encouraging him to 

come outside of his apartment to talk with the Officer Defendants.

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C. Wrongful Death Claims (Counts IX–XV)

Plaintiffs’ remaining claims for wrongful death all arise under Florida law. 

The parties are not diverse. See Compl. ¶¶ 8, 12.

9 Therefore, the only basis for the

Court’s exercise of jurisdiction over Plaintiffs’ claims is supplemental jurisdiction 

under 28 U.S.C. § 1367. “A district court may decline to exercise supplemental 

jurisdiction over a claim after dismissing all claims over which it has original 

jurisdiction.” Cromartie v. Ala. State Univ., 693 F. App’x 852, 853 (11th Cir. 2017) 

(per curiam). “In fact, [the Eleventh Circuit] ‘encourage[s] district courts to dismiss 

any remaining state claims when, as here, the federal claims have been dismissed 

prior to trial.’ ” Id. (quoting Raney v. Allstate Ins. Co., 370 F.3d 1086, 1089 (11th 

Cir. 2004)). The Court finds that the factors of economy, convenience, fairness and 

comity each weigh in favor of a remand. See Estate of Owens v. GEO Grp., Inc., 660 

F. App’x 763, 775–77 (11th Cir. 2016) (citing United Mine Workers of Am. v. Gibbs, 

383 U.S. 715, 726 (1966)). Accordingly, this action is remanded to the Circuit Court 

of the First Judicial Circuit in and for Escambia County, Florida.

9 “Where an estate is a party, as in this case, the citizenship that counts for diversity 

purposes is that of the decedent.” Moore v. N. Am. Sports, Inc., 623 F.3d 1325, 1327 (11th Cir. 

2010).

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Accordingly,

1. Counts I–VIII of Plaintiffs’ Complaint are DISMISSED without

prejudice.

2. The Court declines to exercise supplemental jurisdiction over the state law 

causes of action in Counts IX–XV. This action is therefore REMANDED

to the Circuit Court of the First Judicial Circuit in and for Escambia 

County, Florida.

3. The Clerk is directed to remand this action and close this case for all 

purposes.

DONE AND ORDERED this 19th day of November 2020.

M. Casey Rodgers

M. CASEY RODGERS

UNITED STATES DISTRICT JUDGE

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