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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

SHELDON LEE HUTCHINS,

Plaintiff,

v. CASE NO.: 3:20-CV-05952-MCR-ZCB

DAVID MICHAEL ROWELL, et al.,

Defendants. 

____________________________________________________________

DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S FIFTH AMENDED 

COMPLAINT

Defendants Eric Hays, David Rowell, Kurt Schultz, and Patrick 

Campbell (hereinafter referred to as “Hays,” “Rowell,” “Schultz,” and 

“Campbell,” respectively), and collectively referred to hereinafter as 

“Defendants,” pursuant to the Fed. R. Civ. P. 12(b)(6) and N.D. Fla. Local R. 

7.1 move to dismiss Plaintiff’s Fifth Amended Complaint (ECF No. 30) and 

in support thereof, state the following:

1. On November 20, 2020, Plaintiff filed his Complaint. ECF No. 1. 

This Court thereafter determined that Plaintiff’s documents were deficient 

and required Plaintiff to correct those deficiencies before the litigation could 

proceed. ECF No. 4.

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2. On January 14, 2021, Plaintiff filed his First Amended Complaint. 

ECF No. 8. After review, this Court determined that Plaintiff’s allegations 

failed to state a claim for relief against various defendants but allowed 

Plaintiff to amend his pleading. ECF No. 12.

3. On December 8, 2021, Plaintiff filed a Second Amended 

Complaint. ECF No. 21. After review, this Court determined that Plaintiff 

failed to state a claim against the Santa Rosa County Sheriff’s Office but 

allowed Plaintiff another opportunity to amend. ECF No. 23.

4. On January 3, 2022, Plaintiff filed a Third Amended Complaint. 

ECF No. 24. After review, this Court determined that Plaintiff’s pleading was 

deficient and required Plaintiff to file an amended pleading. ECF No. 25.

5. On April 1, 2022, Plaintiff filed a Fourth Amended Complaint. 

ECF No. 27. After review, this Court determined that Plaintiff had failed to 

state a claim as to one or more of his claims and the pleading was subject to 

dismissal; however, Plaintiff was allowed to amend. ECF No. 29.

6. On June 21, 2022, Plaintiff filed a Fifth Amended Complaint. ECF 

No. 30. This Court allowed Plaintiff’s claims to proceed against the abovenamed Defendants and thereafter Defendants Hays, Schultz, Rowell, and 

Campbell filed waivers of service. ECF Nos. 35, 36, 37, 38. 

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 7. From review of the Fifth Amended Complaint, it appears that 

Plaintiff seeks to assert duplicative Fourth and Eighth Amendment claims

regarding a single incident which occurred at the Santa Rosa County Jail on 

April 17, 2019. Based on Plaintiff’s prisoner status at the time of the alleged

incident, Plaintiff fails to state a claim under the Eighth Amendment, pursuant 

to Rule 12(b)(6), F.R.C.P.

 8. As to the excessive force claim brought pursuant to the Fourth 

Amendment, Plaintiff has failed to state a claim upon which relief can be 

granted pursuant to Rule 12(b)(6), F.R.C.P., as to Hays, Rowell, Schultz, 

and Campbell. Plaintiff has failed to allege sufficient facts to establish a 

constitutional violation.

 9. Because Plaintiff has failed to allege a constitutional violation, 

Hays, Rowell, Schultz, and Campbell are entitled to qualified immunity. 

WHEREFORE, and for the reasons set forth more fully below, the 

Defendants respectfully request that this Court grant their Motion to Dismiss 

Plaintiff’s Fifth Amended Complaint. 

MEMORANDUM OF LAW

A. Standard of Review of Rule 12(b)(6) Motion

A complaint must “include sufficient factual matter, accepted as true, 

to ‘state a claim of relief that is plausible on its face’,” Ashcroft v. Iqbal, 556 

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U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 

(2007)), and if it does not, the complaint is subject to dismissal. See Fed. R. 

Civ. P. 12(b)(6). A claim has facial plausibility when the plaintiff pleads factual 

content that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged. See Iqbal, 556 U.S. at 677-

78. While detailed factual allegations are not required, the pleader must do 

more than merely invoke labels, conclusions, and the formulaic elements of 

a cause of action. Twombly, 550 U.S. at 555.

When a Court considers “a Motion to Dismiss, all facts set forth in the 

plaintiff’s complaint ‘are to be accepted as true and the court limits its 

consideration to the pleading and exhibits attached thereto’.” GSW, Inc. v. 

Long County, 999 F.2d 1508, 1510 (11th Cir. 1993) (emphasis added). In 

the present case, Plaintiff attaches to his Fifth Amended Complaint an 

exhibit, which includes a nine-page incident report with statements made by 

several of the Defendants, as the factual basis for his claims. Indeed, he 

references “Exhibit A” often throughout his Complaint in support of his 

allegations and incorporates and adopts the narratives therein. ECF No. 30 

at 8 – 11, 14.

The statements within Plaintiff’s exhibit (ECF No. 30-1) show 

affirmatively that Plaintiff has failed to state a claim upon which relief can be 

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granted under § 1983. “To state a claim under § 1983, a plaintiff must allege 

the violation of a right secured by the Constitution and laws of the United 

States, and must show that the alleged deprivation was committed by a 

person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 

(1988) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part 

on other grounds, Daniels v. Williams, 474 U.S. 327, 330 – 31 (1986)). 

Because Plaintiff fails to allege a constitutional violation, the Defendants are 

entitled to qualified immunity as a matter of law, which will be supported more 

fully below.

B. Official Capacity Claims

Plaintiff appears to attempt to bring claims against all Defendants in 

both their individual and official capacities. See ECF No. 30 at 4, 5. However,

Plaintiff fails to state an official capacity claim against any of the Defendants.

Official capacity suits “generally represent only another way of pleading an 

action against an entity of which an officer is an agent.” Kentucky v. Graham, 

473 U.S. 159, 165 – 66 (1985) (quoting Monell v. New York City Dept. of 

Soc. Servs., 436 U.S. 658, 690 n.55 (1978)). Thus, “an official capacity suit 

against a government official is generally treated as a suit against the 

underlying governmental entity.” Scott v. Taylor, 405 F.3d 1251, 1254 (11th 

Cir. 2005) (citing Graham, 473 U.S. at 165 – 67).

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Further, a governmental entity may only be held liable under § 1983 

when there was a custom or policy that constituted deliberate indifference to 

a constitutional right which was violated and it was that policy or custom 

which caused the violation. Monell, 436 U.S. at 694 – 95. Plaintiff has made 

no such allegation. Accordingly, to the extent that Plaintiff is attempting to 

raise such a claim, this Court should dismiss all official capacity claims 

alleged by Plaintiff for failure to state a claim upon which relief can be 

granted, pursuant to Rule 12(b)(6), F.R.C.P.

C. Plaintiff Fails to State a Claim for Relief as to Hays, Rowell, 

Schultz, and Campbell

Turning to the individual capacity claims, Plaintiff alleges two claims 

against each of the Defendants, a violation of the Fourth Amendment and a 

violation of the Eighth Amendment. ECF No. 30 at 12 – 15. However, both 

claims against the Defendants appear to be based upon identical facts: the 

alleged excessive force Plaintiff contends he was subjected to during his 

intake process on April 17, 2019, at the Santa Rosa County Jail. To that end, 

the claims are duplicative, and cannot both be asserted as a matter of law. 

The Eighth Amendment prohibits “cruel and unusual punishments” but 

the Supreme Court has interpreted this to prohibit such against convicted 

prisoners. See Hudson v. McMillian, 503 U.S. 1, 9 (1992). Clearly, this would 

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not apply to the state of the Plaintiff at the time of the alleged excessive force, 

as is clear from the incident report.

1 The Fourth Amendment contains a 

prohibition against “unreasonable ... seizures” and includes excessive force 

in the course of an arrest. See Graham v. Connor, 490 U.S. 386, 394 (1989). 

At the time of the Plaintiff’s alleged excessive force, he had recently been 

arrested but the alleged incident occurred during the intake process into the 

jail. In a recent order, this Court characterized Plaintiff’s allegations to be 

those which arise under the Fourth Amendment and not the Fourteenth 

Amendment2 and dismissed Plaintiff’s due process claims based on 

allegations of excessive force during a seizure. See ECF No. 29 at 5 – 6.

Accordingly, the Defendants will address herein that Plaintiff has failed to 

state claims for excessive force under the Fourth Amendment and that the 

allegations do not set forth a constitutional violation.

Claims of excessive force under the Fourth Amendment are measured 

“under an objective reasonableness standard.” Patel v. City of Madison, 959 

F.3d 1330, 1338 (11th Cir. 2020). The operative question under this standard 

1 Plaintiff states in his Complaint that he is a “convicted state prisoner” but 

Plaintiff had not been convicted at the time of the alleged incident. 2See Crocker v. Beatty, 995 F.3d 1232, 1246 – 47, 1254 – 55 (11th Cir. 2021) 

(citing Hicks v. Moore, 422 F.3d 1246, 1254 n.7 (11th Cir. 2005)) (“the 

precise point at which a seizure ends (for purposes of Fourth Amendment 

coverage) and at which pretrial detention begins (governed until a conviction 

by the Fourteenth Amendment) is not settled in this Circuit.”)).

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asks whether “the officer’s ... conduct [was] objectively reasonable in light of 

the facts confronting the officer.” Id. (quoting Vineyard v. Wilson, 311 F.3d 

1340, 1347 (11th Cir. 2002)). A court considers the following when asking 

whether an officer’s use of force was reasonable under the Fourth 

Amendment: (1) the severity of the crime; (2) whether the individual posed 

an immediate threat to the safety of the officers or others; (3) whether the 

individual actively resisted arrest or attempted to evade arrest by flight; (4) 

the need for the force to be applied; (5) the amount of force applied in light 

of the need for the force; and (6) the severity of the injury. Id. (citing Graham, 

490 U.S. at 396, as to the first three factors, and Lee v. Ferraro, 284 F.3d 

1188, 1197-98 (11th Cir. 2002) as to the remainder). The Court will not act 

as a “Monday-morning quarterback”; rather, the question will be that of the 

reasonableness of the force from the perspective of a “reasonable officer on 

the scene.” Id. (citing Graham, 490 U.S. at 396).

An officer “violates the Fourth Amendment, and is denied qualified 

immunity, if he or she uses gratuitous and excessive force against a suspect 

who is under control, not resisting, and obeying commands.” Saunders v. 

Duke, 766 F.3d 1262, 1265 (11th Cir. 2014). Plaintiff has not stated a claim

against any of the Defendants because, based on Plaintiff’s own allegations

and the incorporated exhibit, at the time force was used against him, he was 

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not under control, was resisting and not obeying lawful commands, and was 

acting in a manner which placed himself at risk for harm; thus, the force used 

to temper his obstruction was not gratuitous or excessive.

Allegations

While Plaintiff’s statement of facts present a version of the events, 

under the law, the attached incident report (ECF No. 30-1), and the facts set 

forth therein, control. Friedman v. Market St. Mortg. Corp., 520 F.3d 1289, 

1295 n.6 (11th Cir. 2008) (“where there is a conflict between allegations in a 

pleading and exhibits thereto, it is well settled that the exhibits control.”) The 

narratives in the incident report establish that no constitutional violation 

occurred on April 17, 2019. When Plaintiff was brought into the facility, he 

was observed chewing on something in his mouth. ECF No. 30-1 at 3, 6. 

Hays’ narrative states that both he and Rowell advised Plaintiff “several times 

to spit out the object and he wouldn’t be charged with introduction” but that 

Plaintiff refused to comply to all commands. Id. at 3. At this time, Plaintiff was 

observed to be sweating and under the influence of an intoxicant. Id. Nowlin 

states that he also gave Plaintiff several commands at this stage to spit out 

what was in his mouth or remove the item. Id. at 5. Nowlin states that 

Campbell also gave numerous similar orders, to which Plaintiff did not 

comply. Id. Pendleton’s narrative also reflects that both Rowell and Hays 

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gave orders for Plaintiff to spit out the item in his mouth but that Plaintiff 

refused to comply. Id. at 6.

After Plaintiff’s numerous refusals, Plaintiff was brought to the change 

out room so that a strip search could be conducted to ensure Plaintiff had no 

other items of contraband on his person. Id. at 2 – 7. In the change out room, 

Plaintiff continued to be given orders by Hays and Campbell and he 

continued to refuse those directives. Id. at 4 – 7. O.C. spray bursts were 

utilized upon Plaintiff’s refusal to follow verbal commands. Plaintiff thereafter 

attempted to “snatch away” from the deputies and was placed on the floor

for better officer control. Id. at 4. Plaintiff was given additional orders but he 

refused to comply; additional bursts of O.C. spray were administered with 

negative results. Id. At this time, Hays and Campbell administered 

mandibular pressure points, in an attempt to keep Plaintiff from swallowing 

what was in his mouth, and Campbell visually confirmed that Plaintiff held a 

plastic baggie in his cheek area. Id. Plaintiff was given additional commands 

which he refused and a contact tase to Plaintiff’s back was administered with 

negative results. Id. Plaintiff was then placed on the floor to complete the

strip search, at which point he attempted to “spit blood” at the deputies. Id.

at 5. Plaintiff also grabbed at the deputies’ hands and arms and, at one point, 

Hays’ taser. Id. at 5 – 6. Plaintiff did not cooperate with the attempted strip 

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search and continued to physically resist. O.C. spray was again utilized to 

gain compliance, but Plaintiff continued to refuse lawful commands. Id. at 5.

The officers were able to complete the strip search but Plaintiff refused to 

stand and still maintained the contraband in his mouth. Id. As a result of 

Plaintiff’s continued non-compliance and obstructive behavior, officers 

attempted to place Plaintiff in a restraint chair; however, Plaintiff resisted

directives given by staff to sit in the chair by attempting to stand up and fight 

with the staff. Id. at 7. He tried to kick the deputies present. Id. It was during 

this resistance that a contact tase to Plaintiff’s chest was administered to 

gain compliance. Id. at 4. Plaintiff was successfully secured in the chair, but 

still had the item in his mouth, despite continued verbal commands to spit it 

out. Id. at 5. After a period of time, but under constant observation, Plaintiff 

was brought out for a decontamination shower and dressed in an orange 

jumpsuit. Id. at 6. Plaintiff was transported to the hospital because he still 

had the item in his mouth, and the contents of the bag were unknown. Id. at 

7. Before the ambulance left the area, Plaintiff spit out the bag in his mouth, 

which was confiscated. Id. at 11.

Hays

With regards to Defendant Hays, Plaintiff alleges Hays “gave explicit 

orders to inflict injury, and actively participated in inflicting excessive force 

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with the intent to cause bodily harm.” ECF No. 30 at 11. Plaintiff alleges 

Hays: (1) ordered the administration of O.C. to the facial area of Plaintiff, (2) 

ordered his subordinates to administer O.C. spray to Plaintiff, (3) allowed 

Pendleton to use Cambell’s taser to administer contact tasings to Plaintiff, 

and (4) administered contact tasings to Plaintiff. Plaintiff claims that it is these 

allegations which serve as the basis for the excessive force claim against 

him.

As previously argued, Plaintiff fails to state upon which relief can be 

granted as to Hays because all of Hays’ actions were constitutionally sound

and taken in response to Plaintiff’s active resistance to the detention 

deputies’, including Hays’, lawful directives. The actions outlined in the 

incident report show that Plaintiff refused numerous lawful orders and 

directives throughout his time at the Santa Rosa County Jail and offered 

continuous physical resistance. Plaintiff was given numerous verbal 

commands to spit out the item that he had in his mouth but refused to do so. 

Plaintiff also attempted to engage in physical violence toward the officers, 

grabbing at them and kicking them at various times. Thus, in evaluating the 

excessive force claim against Hays, the question to be asked is whether his 

“actions are objectively reasonable in light of the facts and circumstances 

confronting them, without regard to their underlying intent or motivation.” 

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Garczynski v. Bradshaw, 573 F.3d 1158, 1166-67 (11th Cir. 2009). Hays, as 

well as the other detention deputies, reasonably believed that Plaintiff 

possibly had concealed a drug or other illegal substance in his mouth. The 

concern for the safety of the Plaintiff is obvious: an inmate cannot be allowed 

to conceal items in or on his body and be admitted into a secure facility. 

Certainly, an officer may use force to extricate an item of contraband from 

an uncooperative individual who is being processed into a jail after an arrest. 

Thus, Plaintiff’s continual refusals warranted application of force for 

compliance. 

Hays’s use of O.C. spray on Plaintiff in order to gain compliance to 

Plaintiff’s refusal to spit out the item was not unconstitutional. See 

McCormick v. City of Ft. Lauderdale, 333 F.3d 1234, 1245 (11th Cir. 2003) 

(“Pepper spray is an especially noninvasive weapon and may be one very 

safe and effective method of handling a violent suspect who may cause 

further harm to himself or others.”); see also Vineyard, 311 F.3d at 1348 

(“Indeed, pepper spray is a very reasonable alternative to escalating a 

physical struggle with an arrestee.”). Each time the O.C. spray was utilized, 

it was after a verbal command had been given and Plaintiff refused to 

comply. As to the mandibular hold alleged to have been utilized by Hays,

such force was also constitutional under the circumstances. “[I]t is 

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constitutional for officers recognizing an attempt to swallow and destroy what 

appears to be narcotics to hold the suspect’s throat and attempt to pry open 

the suspect’s mouth by placing pressure against his jaw and nose.” German 

v. Sosa, 399 Fed. Appx. 554, 557 (11th Cir. 2010) (citing Espinoza v. United 

States, 278 F.2d 802, 804 (5th Cir. 1960)3

). During the mandibular hold, 

Campbell was able to view the plastic baggie in his mouth, and it is 

reasonable that, upon hearing this information, Hays and the other deputies 

would believe that Plaintiff was attempting to conceal an illegal substance. 

Under the circumstances, such an action is reasonable given the safety risk 

that possible drug/paraphernalia ingestion poses, combined with Plaintiff’s 

active resistance. 

With regards to the alleged contact tasings utilized by Hays, both on 

his own and at his direction, such actions are constitutional under the 

circumstances alleged. The use of a taser on a non-compliant pretrial 

detainee, or an individual at Plaintiff’s legal status at the time of his entrance 

into the jail, cannot be deemed objectively unreasonable, specifically when 

those tasings come after repeated verbal instructions. A taser represents a 

reasonable amount of force when weighed against an officer’s need to obtain 

3 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en 

banc), the Eleventh Circuit adopted as binding present all decisions of the 

former Fifth Circuit handed down prior to September 30, 1981.

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compliance by an inmate with directives. See Zivojinovich v. Barner, 525 

F.3d 1059, 1073 (11th Cir. 2008) (nothing the Eleventh Circuit’s present that 

“the use of a taser gun to subdue a suspect who has repeatedly ignored 

police instructions and continued to act belligerently toward police is not 

excessive force.”). Plaintiff’s continued non-compliance and the fact that he 

maintained the item in his mouth over a period of time would indicate that his 

injuries from the contact tasings were not severe or incapacitating. Despite 

the contact tasings, Plaintiff continued to receive directives from Hays, which 

he continued to refuse; such continued directives are evidence of a 

continued effort to limit the amount of force used. Additionally, the incident 

report outlines that the tasings were only initiated for compliance upon 

Plaintiff’s continued resistance. For example, Plaintiff tried to stand up 

multiple times when he was being placed into the restraint chair but once 

Plaintiff was secured in the chair, no other tasing is alleged to have taken 

place. The force, then, was undisputedly undertaken with a legitimate 

purpose and against an individual who was actively resisting lawful 

commands and directives. The contact tasings were appropriate and 

reasonable under the circumstances. 

Finally, Plaintiff takes issue with Hays’ allowing him to be restrained in 

handcuffs and leg shackles while he was in signs of medical distress; 

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however, this allegation is not supported by the facts. As previously outlined, 

there was a need for the application of some force against Plaintiff, as he 

failed to follow commands given by Hays and others. After utilizing the O.C. 

spray, Plaintiff became physically non-compliant, which necessitated Plaintiff 

being restrained in the restraint chair. Numerous less forceful means had 

been utilized prior to this; however, Plaintiff remained non-compliant and 

thereafter became physically combative. Thus, there was a clear need for 

restraints and the force used was not disproportionate to the need. See 

Campbell v. Sikes, 169 F.3d 1353, 1374-77 (11th Cir. 1999) (recognizing 

that the user of “L” shaped restraint and straightjacket was a permissible use 

of force on prisoner who had taken affirmative acts toward harming herself 

and posed a serious threat of further self-harm). 

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, 

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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 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). The allegations by Plaintiff support this 

notion; that the force utilized by Hays, and at his direction, was proportional 

to the established need to ensure contraband did not enter the jail and 

ensure Plaintiff’s physical safety as well as the officers conducting his intake. 

Additionally, Plaintiff fails to allege injuries which are severe or incapacitating 

resulting from this incident. See Riggins v. Beseler, 568 Fed. Appx. 850, 853 

(11th Cir. 2014) (holding that as Plaintiff’s self-serving statement that he 

suffered scarring from a taser gun being used in drive stun mode without any 

additional evidence was not sufficient to establish that his injuries were more 

than de minimis). Injuries which result from Plaintiff’s own behavior are 

insufficient. Accordingly, Plaintiff has failed to state a claim for excessive 

force against Hays as to the incident which occurred at the Santa Rosa Jail 

on April 17, 2019.

Rowell

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Plaintiff alleges that Rowell is liable under § 1983 for excessive force 

because he “actively participated in the restraint and administration of cruel 

and unusual punishment when he held the Plaintiff down so that Lt. Hays 

could inflict the bodily injuries to the Plaintiff.” ECF No. 30 at 12, ¶2. Plaintiff 

also alleges that Rowell is liable for excessive force by “allow[ing] illegal 

activity to take place” which made him “an accomplice.” Id. However, as 

previously established, the actions alleged by Plaintiff do not state a claim 

for excessive force; the administration of O.C. spray, the contact tasings, and 

the application of restraints were all objectively reasonable in light of 

Plaintiff’s continued resistance and disobedience to lawful commands. 

Further, there are no facts which support Plaintiff’s statement that he was 

“held down” by Rowell. There is no reference whatsoever in the incident 

report that Rowell ever touched Plaintiff once Plaintiff arrived at the jail and 

entered into the intake area. Indeed, Rowell was the arresting officer whose 

involvement does not extend beyond giving Plaintiff commands to spit out 

the item in his mouth at intake. There are no facts to support any assertion 

that Rowell acted in a manner which could be construed as objectively 

unreasonable. Accordingly, Plaintiff has failed to state a claim for excessive 

force against Rowell as to the incident which occurred at the Santa Rosa Jail 

on April 17, 2019.

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Schultz

Plaintiff alleges that Schultz is liable under § 1983 for excessive force 

because he “actively participated in restraining the Plaintiff and holding him 

down while Lt. Hays and other deputies administered the illegal excessive 

force,” “helped in placing the Plaintiff in the restraint chair while he was being 

tortured by Lt. Hays’ administering his taser to the back and chest of Plaintiff” 

and, like Rowell, “was an accomplice.” Id. at 13, ¶4. The argument regarding 

Defendant Schultz is similar to that of Rowell; the administration of O.C. 

spray, the contact tasings, and the application of restraints were all 

objectively reasonable in light of Plaintiff’s continued resistance and 

disobedience to lawful commands. Further, the placing of Plaintiff in the 

restraint chair was objectively reasonable and, under the circumstances 

alleged, not unconstitutional; thus, any assistance that Schultz would have 

provided to that end would not have violated the rights of Plaintiff. Further, 

the narratives establish that the contact tasings were administered as a result 

of Plaintiff’s obstructive and non-compliant behavior. Accordingly, Plaintiff 

has failed to state a claim for excessive force against Schultz as to the 

incident which occurred at the Santa Rosa Jail on April 17, 2019.

Campbell

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Plaintiff alleges that Campbell is liable under § 1983 for excessive force 

because he “ordered Deputy Pendleton to spray O.C. (pepper spray) spray 

in the face of the Plaintiff,” “ordered the deputies to throw Plaintiff on the 

ground,” “ordered and assisted in the holding of Plaintiff’s eyes wide open so 

that he could distribute O.C. (pepper spray) directly into them,” “ordered 

Deputy Pendleton ... to take out his taser from it’s holster ... and administer 

repeated shock,” and “ordered the torture to the Plaintiff through his direct 

orders to his subordinates.” Id. at 15, ¶6. As previously outlined, at the time 

that O.C. spray had been administered to Plaintiff, he had been given 

numerous verbal commands to spit out the item in his mouth and he refused 

each time. The administration of O.C. spray was reasonable under the 

circumstances alleged. There are no facts to support that the O.C. spray was 

administered in any way which could be construed as objectively 

unreasonable. The contact tasings were likewise administered as a result of 

Plaintiff’s refusal to comply with lawful commands; thus their administration 

was objectively reasonable. There is no factual support for Plaintiff’s claim 

that he was “thrown” to the ground; the narratives describe how Plaintiff was 

put on the floor so that he could be strip searched and for better officer 

control. Placing a non-compliant inmate on the floor so that a strip search 

may be completed safely is objectively reasonable. Finally, as to Plaintiff’s 

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claim of “torture,” the narrative sets forth a series of facts from which this 

Court can determine that all uses of force were reasonable under the 

circumstances alleged and did not violate Plaintiff’s constitutional rights. 

Accordingly, Plaintiff has failed to state a claim for excessive force against 

Campbell as to the incident which occurred at the Santa Rosa Jail on April 

17, 2019.

D. Qualified Immunity

Qualified immunity shields officers from liability; indeed, it shields all 

officers except those who are “plainly incompetent or one who is knowingly 

violating the federal law.” Lee, 284 F.3d at 1194. The doctrine provides 

“immunity from suit rather than a mere defense to liability.” Pearson v. 

Callahan, 555 U.S. 223, 237 (2009) (quoting Mitchell v. Forsyth, 472 U.S. 

511, 526, (1985)) (internal quotations omitted). Consequently, the court must 

“resolv[e] immunity questions at the earliest possible stage in litigation.” 

Pearson, 555 U.S. at 232 (quoting Hunter v. Bryant, 502 U.S. 224, 227 

(1991)) (internal quotations omitted). When determining whether an officer 

is entitled to qualified immunity, the Court will balance “the need to hold 

[officers] accountable when they exercise power irresponsibly and the need 

to shield [them] from harassment, distraction, and liability when they perform 

their duties reasonably.” Pearson, 555 U.S. at 231. Qualified immunity 

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should be applied to Hays, Rowell, Schultz, and Campbell unless Plaintiff 

can allege facts which show that their actions, individually, were so egregious 

and unacceptable to have blatantly violated the Constitution. See Lewis v. 

City of W. Palm Beach, Fla., 561 F.3d 1288, 1292 (11th Cir. 2009). This 

standard is only met when “every reasonable officer would conclude that the 

excessive force used was plainly unlawful.” Id. (citing Priester v. City of 

Riviera Beach, Fla., 208 F.3d 919, 926–27 (11th Cir.2000)). An officer 

asserting qualified immunity has the burden to show that he was acting within 

his discretionary authority at the time of the alleged incident. Piazza v. 

Jefferson Cnty., 923 F.3d 947, 951 (11th Cir. 2019). Here, Plaintiff does not 

assert that the officers were acting in any other capacity other than as 

deputies employed by the Santa Rosa County Sheriff’s Office at the time of 

the allegations. In his Complaint, Plaintiff routinely refers to the various 

Defendants by their titles, that being “deputy,” “Lt.,” and “Sgt.,” for example.

The narratives in the incident report also confirm that the officers’ actions 

were “undertaken pursuant to the performance of [their] duties and within 

[their] scope of authority.” Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 

1988) (quoting Barker v. Norman, 651 F.2d 1107, 1121 (5th Cir.1981)). As 

to Hays, Schultz, and Campbell, processing an arrestee through intake for 

entrance into a jail would involve searches for contraband, which would be 

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considered part of the performance of a detention deputy’s normal job duties 

and within their delegated authority. As to Rowell, transporting an arrestee 

to jail and turning them over to the detention deputies at that location for 

processing would likewise be considered part of the performance of a Deputy

Sheriff’s normal job duties and within his delegated authority. Plaintiff asserts 

no facts to the contrary. Accordingly, it can be concluded that the Defendants 

have satisfied their “discretionary function” burden at this stage of the 

proceedings. 

If an officer satisfies his burden of demonstrating that he was acting 

within the scope of his discretionary authority when the allegedly wrongful 

acts occurred, the burden then shifts to the plaintiff to establish that the 

officer violated a constitutional right that was clearly established at the time 

of the alleged violation. Piazza, 923 F.3d at 951. The officer is entitled to 

qualified immunity if the plaintiff fails to show either that there was some 

constitutional violation or that it was clearly established, and a Court may 

consider these two elements in either order. Id. As previously outlined, none 

of the alleged acts complained of by Plaintiff constitute a constitutional 

violation. The force used against him on April 17, 2019, was “reasonably 

proportionate to the need for that force.” Lee, 284 F.3d at 1198. Plaintiff 

resisted numerous lawful commands by the Defendants and posed an 

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objectively immediate threat to his own safety and, at various points, the 

safety of the detention deputies. Plaintiff has failed to establish that either 

Hays, Rowell, Schultz, or Campbell violated his right to be free from 

excessive force under the Fourth Amendment. 

Plaintiff likewise cannot show that the right he contends was violated 

“was clearly established at the time of the alleged violation.” Piazza 923 F.3d 

at 951. In doing this, Plaintiff would have to show that “every reasonable 

official would have understood that what he is doing violates the 

Constitutional right at issue.” Gates v. Khokhar, 884 F.3d 1290, 1303 (2018). 

This inquiry “must be undertaken in light of the specific context of the case, 

not as a broad general proposition.” Saucier v. Katz, 533 U.S. 194, 202 

(2001); see also Mullenix v. Luna, 577 U.S. 7, 12 (2015) (“The dispositive 

question is whether the violative nature of particular conduct is clearly 

established.” (internal quotation marks omitted)). It is well-settled in this 

circuit that force can be used against an individual who is believed to have 

contraband in his mouth but refuses to remove it. German, 399 Fed. Appx. 

at 557. Courts have also recognized that various forms of non-lethal force 

may be used against an individual who continually resists lawful commands 

or creates a security risk inside of a jail environment. See McCormick, 333 

F.3d at 1245; Zivojinovich, 525 F.3d at 1073; Fennell v. Gilstrap, 559 F.3d 

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1212, 1217 (11th Cir. 2009) (an officer may use force “in a good-faith effort 

to maintain or restore discipline”); Bennett v. Parker, 898 F.2d 1530, 1533 

(11th Cir. 1990) (“prison guards may use force when necessary to restore 

order and need not wait until disturbances reach dangerous proportions 

before responding”). The foregoing analysis, in light of the relevant case law 

in this Circuit, establishes that at the time of the incident there was no clearly 

established law identifying any of the uses of force as unconstitutional. As 

discussed above, the facts plainly support this Court finding that the 

Defendants acted, at all times, in an objectively reasonable manner based 

upon Plaintiff’s behavior. Hays, Rowell, Schultz, and Campbell are entitled 

to qualified immunity.

CONCLUSION

Plaintiff has failed to state claims of excessive force against the 

Defendants. Accordingly, because Plaintiff has failed to allege sufficient facts 

which establish to that his constitutional rights were violated by Hays, Rowell, 

Schultz, or Campbell, they are entitled to qualified immunity. Plaintiff has 

been provided five opportunities to allege a viable constitutional violation 

against any Defendant based on the incident which occurred in the jail on 

April 17, 2019 and has failed to do so. As a result, Plaintiff’s Fifth Amended 

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Complaint is due to be dismissed with prejudice, against Hays, Rowell, 

Schultz, and Campbell. 

CERTIFICATE OF COMPLIANCE OF RULE 7.1

Pursuant to Local Rule 7.1(F), I hereby certify that the foregoing motion 

and memorandum is 5663 words in length. 

Respectfully submitted this 13th day of January 2023. 

 WARNER LAW FIRM, P. A.

 /s/ Alicia D. Carothers

 ALICIA D. CAROTHERS

 Florida Bar No. 0099339

 501 W. 11th Street, Suite A

Panama City, FL 32401

Phone No. (850) 784-7772

 pleadings@warnerlaw.us 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was filed via CM/ECF 

this 13th day of January 2023, and a copy was mailed through USPS to 

Plaintiff at:

Lawtey Correctional Institute

P.O. Box 2000

Lawtey, FL 32058

/s/ Alicia D. Carothers

 ALICIA D. CAROTHERS

 Florida Bar No. 0099339 

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