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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

WILEY DERRELL REESE,

Plaintiff,

vs. Case No. 3:04cv17/RV/EMT

KEVIN COXWELL,

DEVIN SHANE HUNNICUTT,

Defendants.

____________________________________/

REPORT AND RECOMMENDATION

This case filed pursuant to 42 U.S.C. § 1983 is now before the court upon Defendants’

special report and supporting documents filed on June 30, 2005 (Doc. 32). Plaintiff, proceeding pro

se and in forma pauperis, responded to the special report (Doc. 40). On July 5, 2005, and October

7, 2005, the court entered orders advising the parties of the importance and ramifications of Rule

56 summary judgment consideration, and informing the parties that the special report would be

construed as a motion for summary judgment as of November 7, 2005 (Docs. 33, 41). Neither party

has filed additional argument or Rule 56 materials. Upon review of the parties’ submissions, it is the

opinion of the undersigned that the motion for summary judgment filed by Defendants should be

granted in part and denied in part.

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The court conveys as facts those factual allegations of Plaintiff’s verified fourth amended complaint, including

attachments (Doc. 20), and Defendants’ affidavits in support of their motion for summary judgment, including

attachments (Doc. 32), which comply with the requirements for affidavits specified in Rule 56--that they “shall be made

on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that

the affiant is competent to testify to the matters stated therein.” Fed.R.Civ.P. 56(e); see, e.g., Dickinson v. Wainwright,

626 F.2d 1184, 1186 (5th Cir. 1980); Murrell v. Bennett, 615 F.2d 306, 310 n. 5 (5th Cir. 1980).

Case No.: 3:04cv17/RV/EMT

I. BACKGROUND

The following material facts are without substantial controversy.1 On November 14, 2003,

Escambia County deputy sheriffs, including Defendant Hunnicutt, went to a residence in Escambia

County, Florida, to serve a felony arrest warrant on Plaintiff (Doc. 32, Affidavit of Devin Hunnicutt

¶ 4). Earlier that evening, Defendant Hunnicutt had been advised that there was an outstanding

warrant for the arrest of Plaintiff for sexual battery (id.). He had been told of two addresses where

Plaintiff may be located, and to be on the lookout for a Chrysler vehicle with a specific license tag

number (id.). At approximately 9:30 p.m., Defendant Hunnicutt observed a Chrysler vehicle with

a matching tag number back into the driveway of one of the suspected addresses, specifically, 23

Sandalwood Drive (id. ¶ ¶ 3, 4, attached Offense Report). Hunnicutt stopped at the house and

approached the driver of the vehicle, Henry Rankins (id.). Mr. Rankins indicated to Defendant

Hunnicutt that he resided at the 23 Sandalwood address with Plaintiff (id.). Hunnicutt asked Mr.

Rankins if Plaintiff was inside the residence, and Rankins responded that he did not know (id.). Mr.

Rankins gave Defendant Hunnicutt the key to the house and permission to enter (id.).

By that time, Defendant Coxwell had arrived at the scene with a canine (id.). At the

doorway, but before entering, Defendant Coxwell loudly announced the presence of the canine and

that the dog would be entering the house (Doc. 32, Affidavit of Kevin Coxwell ¶ 6; Hunnicutt Aff.

¶ 5). Also, the canine was barking (Coxwell Aff. ¶ 6; Hunnicutt Aff. ¶ 5). The officers heard no

response from inside the residence (id.). Defendant Coxwell deployed the canine into the residence

and commanded him to search (Coxwell Aff. ¶ 7). Plaintiff was asleep when the officers entered

the house (Doc. 20 at 7, continuation page).

The parties’ versions of events significantly diverge as to the circumstances surrounding

Defendants’ capture of Plaintiff upon entering the house. Plaintiff states he was asleep on the floor,

when he was awakened by Defendant Hunnicutt stating, “Sheriff’s Department, show me your

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Case No.: 3:04cv17/RV/EMT

hands” (Doc. 20 at 7, continuation page; Doc. 40 at 4). Plaintiff sat up on his knees and raised his

hands (Doc. 20 at 7, continuation page; Doc. 40 at 4). Defendant Hunnicutt hit Plaintiff in the back

of the head with a flashlight, knocking him unconscious (Doc. 20 at 7, continuation page; Doc. 40

at 4). When Plaintiff awoke, he was being dragged across the floor by the canine (Doc. 20 at 7,

continuation page; Doc. 40 at 4). Plaintiff screamed and pleaded with the officers to remove the

canine (Doc. 20 at 7, continuation page; Doc. 40 at 4). Defendant Hunnicutt responded by dropping

his knee in the center of Plaintiff’s back, thereby injuring him (Doc. 20 at 7, continuation page; Doc.

40 at 5). Plaintiff was taken to the hospital for treatment (Doc. 20 at 7, continuation page).

Defendants recount Plaintiff’s capture quite differently. In his supporting affidavit,

Defendant Coxwell states that upon deploying the canine into the residence, the dog went to the rear

of the residence and indicated he had located someone (Coxwell Aff. ¶ 7). As Coxwell followed the

dog, he saw Plaintiff run and attempt to get on a table (id.). When the canine located Plaintiff, he

began biting him on his lower right leg (id.). Defendant Coxwell instructed Plaintiff to show his

hands, and when Coxwell observed that Plaintiff was not armed, he instructed Plaintiff to get off the

table and onto the floor (id. ¶ 8). Plaintiff refused Coxwell’s commands and disappeared behind a

wall, out of the officers’ sight (id.). Defendant Coxwell chased Plaintiff and wrestled him to the

ground (id.). Plaintiff continued to resist, so Coxwell attempted to strike Plaintiff on the shoulder

with his flashlight, but instead struck him on the head, causing a small cut (id.). Defendant Coxwell

finally secured control of Plaintiff and placed him under arrest (id.). Coxwell states the

aforedescribed events occurred in a period of time lasting no more than sixty (60) seconds (id. ¶ 9).

Plaintiff was then taken to the hospital for treatment of the dog bite wounds and the laceration on

his head (id. ¶ 10). 

In Defendant Hunnicutt’s supporting affidavit, he states the canine entered the house and,

after a search, located Plaintiff (Hunnicutt Aff. ¶ 6). Plaintiff refused to cooperate with Defendant

Coxwell’s commands to get on the floor and stop resisting (id. ¶ 7). After a struggle, Coxwell was

able to obtain control of Plaintiff and place him under arrest (id.).

In his response to the summary judgment motion, Plaintiff has submitted a verified response

in which he recounts the facts as set forth in his complaint (Doc. 40). In addition, he denies

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Defendants’ assertions that he refused Defendants’ commands and ran from them (id. at 6).

Additionally, Plaintiff states the incident lasted longer than sixty seconds (id. at 7). 

II. PROCEDURAL HISTORY

Plaintiff filed his fourth amended complaint against Escambia County deputy sheriffs

Coxwell and Hunnicutt, alleging civil rights violations under 42 U.S.C. § 1983 (unlawful entry and

use of excessive force in violation of Plaintiff’s rights under the Eighth and Fourteenth

Amendments). Specifically, Plaintiff seeks to hold both Defendants liable for illegally entering the

home. Additionally, he seeks to hold Defendant Hunnicutt liable for using excessive force in hitting

him on the head with his flashlight after Plaintiff put his hands up, and for dropping his knee into

Plaintiff’s back as Plaintiff was being dragged by the dog and pleading that Defendants remove it.

He seeks to hold Defendant Coxwell liable for using excessive force in permitting the canine to bite

him after he had been knocked unconscious and failing to remove the dog as the dog dragged him

across the floor. Plaintiff states he is suing Defendants in their individual capacities (Doc. 20 at 7).

As relief, he seeks compensatory and punitive damages in a total amount of $80,000.00 (id. at 8).

Defendants, in their motion for summary judgment, assert that they are entitled to summary

judgment on Plaintiff’s claims of excessive force because Plaintiff’s amended complaint fails to

establish a constitutional violation (Doc. 32 at 3-6). Additionally, they contend they are entitled to

qualified immunity (further arguing that Plaintiff cannot meet the burden of demonstrating that they

violated clearly established law) (id. at 6-10).

III. DISCUSSION

A. Federal Rights Potentially Vindicated by Plaintiff’s Unlawful Entry and

Excessive Force Claims

Because section 1983 is only an enabling statute, the court must discern the underlying

federal right that is purportedly being vindicated by this action. In his fourth amended complaint,

Plaintiff claims that the Defendants unlawfully entered his residence and engaged in excessive force

in violation of his rights under the Eighth and Fourteenth Amendments (Doc. 20 at 7-8). It is clear

that under either parties’ rendition of the facts of this case, the proper standard of review is under

the Fourth Amendment.

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Although Plaintiff does not explicitly reference the Fourth Amendment in his fourth amended complaint, the

court construes his complaint as raising a Fourth Amendment claim. The court has a duty to construe Plaintiff’s pro se

complaint in a liberal fashion, see Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972) and

Dean v Barber, 951 F.2d 1210, 1213 (11th Cir. 1992), and Plaintiff cited the Fourth Amendment in reference to the same

claims in his previously filed complaints (see Docs. 1, 6, 10).

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Plaintiff’s claim of unlawful entry into his residence is governed by the Fourth Amendment.

Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 1374-75, 63 L. Ed. 2d 639 (1980).

Likewise, where, as here, the excessive force claim arises in the context of an arrest, “it is most

properly characterized as one invoking the protections of the Fourth Amendment, which guarantees

citizens the right ‘to be secure in their persons . . . against unreasonable . . . seizures’ of the person.”

Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989) (quoting U.S.

CONST. amend. IV and citing Tennessee v. Garner, 471 U.S. 1, 7-22, 105 S.Ct. 1694, 1699-1707,

85 L.Ed.2d 1 (1985)). It is undisputed that Defendant Coxwell’s use of the canine and Defendant

Hunnicutt’s hitting Plaintiff with his knee and a flashlight occurred in the course of Plaintiff’s arrest.

Thus, Plaintiff’s claims are properly brought under the Fourth Amendment. Therefore, to the extent

Plaintiff brings a claim under the Eighth Amendment, such claim should be dismissed. Plaintiff’s

only viable claims lie under the Fourth Amendment.2

B. Summary Judgment Standard

In order to prevail on their motion for summary judgment, Defendants must show that

Plaintiff has no evidence to support his case or present affirmative evidence that Plaintiff will be

unable to prove his case at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548,

2553-54, 91 L. Ed. 2d 265 (1986). If Defendants successfully negate an essential element of

Plaintiff’s case, the burden shifts to Plaintiff to come forward with evidentiary material

demonstrating a genuine issue of fact for trial. Id. The “mere existence of some alleged factual

dispute between the parties will not defeat an otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A fact is “material” if

it “might affect the outcome of the suit under the governing [substantive] law.” Id.; accord Tipton

v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992). Further, Plaintiff must show more

than the existence of a “metaphysical doubt” regarding the material facts, Matsushita Elec. Indus.

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Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986),

and a “scintilla” of evidence or conclusory allegations is insufficient. Celotex Corp., 477 U. S. at

324 (quoting Fed. R. Civ. P. 56(e)). Plaintiff must either point to evidence in the record or present

additional evidence sufficient to withstand a directed verdict motion at trial based on the alleged

evidentiary deficiency. Id.; Owen v. Wille, 117 F.3d 1235, 1236 (11th Cir. 1997) (“Rule 56(e) . . .

requires the nonmoving party to go beyond the pleading and by h[is] own affidavits, or by the

‘depositions, answers to interrogatories, and admissions on file,’ designate ‘specific facts showing

that there is a genuine issue for trial.’”), cert. denied, 522 U.S. 1126 (1998) (quoting Celotex Corp.,

477 U.S. at 324 (quoting Fed.R.Civ.P. 56(c), (e))); Hammer v. Slater, 20 F.3d 1137 (11th Cir. 1994).

Evidence presented by Plaintiff in opposition to the motion for summary judgment, and all

reasonable factual inferences arising from it, must be viewed in the light most favorable to Plaintiff.

Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970);

Jones v. Cannon, 174 F.3d 1271, 1282 (11th Cir. 1999). A motion for summary judgment should be

granted if “the pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show that there is no genuine issue of material fact and that the moving

party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56; Celotex Corp., 477 U.S. at 322.

C. Fourth Amendment Standard

1. Unlawful entry

The Fourth Amendment generally prohibits the warrantless and nonconsensual entry of a

person’s home to make an arrest. Payton, 445 U.S. at 576. “The prohibition does not apply,

however, to situations in which voluntary consent has been obtained, either from the individual

whose property is searched, . . . or from a third party who possesses common authority over the

premises, . . .” Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 2797, 111 L. Ed. 2d 148

(1990) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L. Ed. 2d 854 (1973);

United States v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 993, 39 L. Ed. 2d 242 (1974)).

“Common authority rests on mutual use of the property by persons generally having joint access or

control for most purposes.” Id. (quoting Matlock, 415 U.S. at 171 n.7, internal quotation marks

omitted).

2. Excessive force

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“The Fourth Amendment encompasses the right to be free from the use of excessive force

during an arrest.” Crosby v. Monroe County, 394 F.3d 1328, 1333 (11th Cir. 2004). When a plaintiff

alleges excessive force by an officer in the course of executing an arrest, he must show that the

officer’s conduct was objectively “unreasonable.” Graham, 490 U.S. at 395-97. Such a test looks

not to the motivation of the particular officer, but instead examines whether a reasonable officer

would have taken the same action given the facts and circumstances confronting him. Id. at 397;

Vinyard v. Wilson, 311 F.3d 1340, 1347 (11th Cir. 2002) (“The question is whether the officer’s

conduct is objectively reasonable in light of the facts confronting the officer.”). The Supreme Court

has recognized that the “right to make an arrest or investigatory stop necessarily carries with it the

right to use some degree of physical coercion or threat thereof to effect it.” Graham, 490 U.S. at

396. Consequently, in determining whether an officer’s use of force was objectively reasonable,

thereby entitling the officer to qualified immunity, the court must consider several factors including:

“(1) the need for the application of force, (2) the relationship between the need and the amount of

force used, (3) the extent of the injury inflicted and, (4) whether the force was applied in good faith

or maliciously and sadistically.” Slicker v. Jackson, 215 F.3d 1225, 1232-33 (11th Cir. 2000)

(quoting Moore v. Gwinnett County, 967 F.2d 1495, 1498 (11th Cir. 1992)(quoting Leslie v. Ingram,

786 F.2d 1533, 1536 (11th Cir.1986))). A court should also consider “(1) the underlying crime’s

severity; (2) whether the suspect poses an immediate threat to the safety of the officers or others;

and (3) whether the suspect actively resists arrest or attempts to flee.” Lafavors v. Jenne, 2006 WL

249544, at *1 (11th Cir. Feb. 2, 2006) (citing Graham, 490 U.S. at 396). Moreover, “the calculus of

reasonableness must embody allowance for the fact that police officers are often forced to make

split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the

amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97. In short,

the Fourth Amendment prohibits force that is objectively unreasonable, both in the decision to

implement the force and in the degree of force. Graham, 490 U.S. at 394; Cottrell v. Caldwell, 85

F.3d 1480, 1492 (11th Cir. 1996). In light of all of these considerations, the assessment of a police

officer’s use of force is a highly factual inquiry.

In the context of a police dog bite, the Eleventh Circuit has held that a police dog bite after

a defendant has been subdued, surrendered, or has ceased resisting or fleeing would violate the

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suspect’s constitutional rights. See Priester v City of Riviera Beach, 208 F.3d 919, 924-25 (11th Cir.

2000).

D. Qualified Immunity

Defendants assert they are entitled to qualified immunity from suit in their individual

capacities. The doctrine of qualified immunity is a guarantee of fair warning. McElligott v. Foley,

182 F.3d 1248, 1260 (11th Cir. 1999). It shields government officials from individual capacity suits

against them for acts that do not violate a clearly established statutory or constitutional right of

which a reasonable person would have known given the circumstances and information possessed

by the official at the time of the conduct. Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153

L. Ed. 2d 666 (2002); Conn v. Gabbert, 526 U.S. 286, 290, 119 S.Ct. 1292, 1295, 143 L. Ed. 2d 399

(1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L. Ed. 2d 396 (1982));

Powell v. Ga. Dep’t of Human Resources, 114 F.3d 1074, 1077 (11th Cir. 1998). Qualified immunity

seeks to ensure that individuals can reasonably anticipate when their conduct may give rise to

liability, and hence, liability only attaches if the contours of the right allegedly violated are

sufficiently clear that a reasonable person would understand that what he is doing violates that right.

McElligott, 182 F.3d at 1260 (citing United States v. Lanier, 520 U.S. 259, 270, 117 S.Ct. 1219, 137

L. Ed. 2d 432 (1997)).

In order to receive qualified immunity, the public official “must first prove that he was acting

within the scope of his discretionary authority when the allegedly wrongful acts occurred.” Lee v.

Ferraro, 284 F.3d 1188, 1194 (internal quotation marks omitted). “Once the defendant establishes

that he was acting within his discretionary authority, the burden shifts to the plaintiff to show that

qualified immunity is not appropriate.” Id. at 1194. The Supreme Court has established a two-part

test for evaluating a claim of qualified immunity. First, the trial court must determine whether a

constitutional right has been violated on the facts alleged. Saucier v. Katz, 533 U.S. 194, 201, 121

S.Ct. 2151, 2156, 150 L. Ed. 2d 272 (2001). The court must assess the facts in a light most

favorable to the party asserting the injury. Id.

Second, if a violation has been established, the court must determine whether the right was

“clearly established.” Id. The very action in question need not have been held unlawful for an

official to lose the protection of qualified immunity. Hope, 536 U.S. 739; Anderson v. Creighton,

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483 U.S. 635, 640, 107 S.Ct. 3034, 97 L. Ed. 2d 523 (1987). Officials can still be on notice that

their conduct violates established law even in novel factual circumstances, and there is no

requirement that previous cases be “fundamentally” or even “materially” similar. Hope, 536 U.S.

at 739. Instead, the law merely must give defendants “fair warning” that their actions are

unconstitutional. Id. In light of pre-existing law, the unlawfulness must be apparent. Id.; Creighton,

483 U.S. at 640. “In this circuit, the law can be ‘clearly established’ for qualified immunity

purposes only by decisions of the U.S. Supreme Court, Eleventh Circuit Court of Appeals, or the

highest court of the state where the case arose.” Wilson v. Strong, 156 F.3d 1131, 1135 (11th Cir.

1998) (quoting Jenkins v. Talladega City Bd. of Educ., 115 F.3d 821, 826 n. 4. (11th Cir. 1997)).

E. Conclusions of Law Regarding Material Facts

1. Unlawful entry

In the instant case, nothing in the record contradicts Defendant Hunnicutt’s sworn affidavit

that Henry Rankins indicated to Hunnicutt that he resided at 23 Sandalwood Drive with Plaintiff,

and that Mr. Rankins gave Hunnicutt a key to the house and permission to enter. Plaintiff did not

submit an affidavit from Mr. Rankins, and Plaintiff could not contradict Defendant Hunnicutt’s

version of the facts because he admits he was asleep inside the house at the time of the encounter

between Hunnicutt and Rankins. Additionally, in light of Plaintiff’s statement that he was asleep

until after the officers had entered the house, and he awoke when they instructed him to show his

hands, Plaintiff could not contradict Defendants’ sworn statements that prior to actually entering the

house, Defendant Coxwell loudly announced their presence. Therefore, Defendants’ entry into the

residence did not violate Plaintiff’s Fourth Amendment rights. See Holmes v. Kucynda, 321 F.3d

1069, 1078-79 (11th Cir. 2003) (officers were entitled to qualified immunity on Plaintiff’s Fourth

Amendment claim of unlawful entry where officer testified he asked third party resident if he could

enter apartment, and resident stepped away from door in gesture of acquiescence, where resident did

not testify, and Plaintiff could not contradict officer’s version of facts because she was not there to

view the encounter). 

2. Excessive force

Defendants argue:

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. . . Coxwell deployed the K-9, named Atos, into the residence and gave him a

command to search. The residence was cluttered and Atos had to climb over items

to engage in the search. At the rear of the residence, Atos reacted to let Coxwell

know that he had located someone. As Coxwell followed Atos into the residence he

saw the suspect run and try to get on a table. When Atos located the suspect, who

proved to be Wiley Reese, he apprehended the suspect by biting him on the lower

right leg.

Coxwell then instructed Reese to expose his hands and when Coxwell saw

that Reese was not armed, he instructed him to get off the table and on to the ground.

Reese refused these commands, fled and disappeared behind a wall, out of sight.

This caused Coxwell to have to chase Reese and, after making contact with him, to

have to wrestle him to the ground. Because of his continued resistance, Coxwell

attempted to strike Reese on the shoulder with his flashlight, but instead struck him

on the head, causing a small cut. Coxwell was then finally able to secure control of

Reese and place him under arrest

(Doc. 32 at 2-3). Thus, Defendants maintain that Plaintiff has failed to establish that they committed

a constitutional violation. They further contend:

No record evidence exists that Defendants took any actions that a reasonable officer

would know violated clearly established law. Defendant merely sought out a felony

suspect, the Plaintiff, for whom a warrant existed and did so by entering a residence

with the permission of the owner. Prior to entering the residence with a K-9 dog, the

Defendants announced their intentions and provided Plaintiff every opportunity to

reveal himself and to surrender. When the law enforcement K-9 discovered Plaintiff,

the K-9 bit Plaintiff without being commanded to do so. Thereafter, Plaintiff

violently resisted the efforts of the Defendants to take him into custody or to subdue

him, resulting in blows being struck against Plaintiff. Simply stated, at the time of

this event, there was no decisional law from the U.S. Supreme Court, the 11th Circuit,

or the Florida Supreme Court, in a factually-similar case, putting Defendants on

notice that their actions violated clearly established law.

(id. at 9-10).

The parties do not dispute that Defendants performed the alleged wrongful acts while acting

within the discretionary authority of their employment. The problem with Defendants’ argument

is that the facts to which they refer are based on their version of events. In analyzing whether

Defendants are entitled to qualified immunity, the court must take the facts in the light most

favorable to Plaintiff and determine the legal issue of whether Plaintiff’s facts, if proven, show that

Defendants violated clearly established law. Priester, 208 F.3d at 925 n. 3 (citing Kelly v. Curtis,

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To list just a few examples, genuine issues of material fact exist as to Plaintiff’s physical position when

Defendants discovered him; the substance of Defendants’ commands to Plaintiff and whether Plaintiff followed them;

whether Plaintiff had surrendered at the time he was bitten by the dog, hit with the flashlight, or “kneed” in the back;

whether Plaintiff was specifically resisting arrest or attempting to flee at any of those moments; etc.

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21 F.3d 1544, 1546 (11th Cir. 1994)). The court has already set forth the facts which, based on the

summary judgment record, are not in dispute. These facts establish the events leading up to

Defendants’ discovery of Plaintiff. The parties sharply dispute the circumstances surrounding

Plaintiff’s capture. These disputed facts are critical to Plaintiff’s excessive force claim.3

Taking the summary judgment evidence in the light most favorable to Plaintiff, Plaintiff has

stated a constitutional violation. Plaintiff was the subject of an arrest warrant for a violent felony.

When deputies arrived at the residence to execute the warrant, Plaintiff was asleep on the floor.

Defendants awakened Plaintiff by commanding him to show his hands. Plaintiff sat up on the floor

and raised his hands. Defendant Hunnicutt hit him in the head with a flashlight, knocking him

unconscious. When Plaintiff regained consciousness, the canine was pulling him across the floor.

Plaintiff begged and screamed for Defendants to remove the dog. In response, Defendant Hunnicutt

dropped his knee to the center of Plaintiff’s back. As a result of the incident, Plaintiff sustained

injury to his back, a laceration on his head, and injury to his leg. Given these facts, a reasonable jury

could conclude that Defendant Coxwell’s use of the canine and Defendant Hunnicutt’s use of his

flashlight and knee in the manner described constituted unreasonable and excessive force in

violation of Plaintiff’s constitutional rights under the Fourth Amendment.

“The next, sequential step [in the qualified immunity analysis] is to ask whether the right was

clearly established.” Saucier, 533 U.S. at 201. The applicable law being “clearly established” is

what ensures that the official has notice or “fair warning” that his conduct is unlawful. Willingham

v. Loughnan, 321 F.3d 1299, 1301 (11th Cir.), cert. denied, 540 U.S. 816, 124 S.Ct. 76, 157 L. Ed.

2d 32 (2003) (citing Saucier, 533 U.S. at 205-06). The Supreme Court and the Eleventh Circuit have

explained that such fair and clear notice can be given in various ways. First, the words of the

pertinent federal constitutional provision “may be so clear and the conduct so bad that case law is

not needed to establish that the conduct cannot be lawful.” Vinyard, 311 F.3d at 1350. Second, if

the conduct is not so egregious as to violate, for example, the Fourth Amendment on its face, the

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court then turns to case law. In some instances, general decisional rules (broad statements of

principle in case law that are not tied to particularized facts) can clearly establish law applicable in

the future to different sets of detailed facts. “These precedents are hard to distinguish from later

cases because so few facts are material to the broad legal principle established in these precedents;

thus, this is why factual differences are often immaterial to the later decisions.” Vinyard, 311 F.3d

at 1351. Third, if the court has no case law with a broad holding that is not tied to particularized

facts, the court then looks at precedent that is tied to the facts. The fact-specific precedent can

clearly establish the applicable law “if the circumstances facing [the] government official are not

fairly distinguishable” from that precedent. Id.

In excessive force cases in the Fourth Amendment context, the Eleventh Circuit has noted

that generally no bright line exists for identifying when force is excessive; thus, the Circuit Court

has concluded that “unless a controlling and materially similar case declares the official’s conduct

unconstitutional, a defendant is usually entitled to qualified immunity.” Priester, 208 F.3d at 926

(citation omitted). However, a narrow exception to the rule requiring particularized case law exists.

Id. “When an excessive force plaintiff shows that the official’s 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 caselaw, the official is not entitled to the defense

of qualified immunity.” Id. (internal quotations and citations omitted); Willingham, 321 F.3d at

1303 (“[A]n official’s conduct could run so afoul of constitutional protections that fair warning was

present even when particularized caselaw was absent.”).

To come within the narrow exception, a plaintiff must show that the official’s

conduct was so far beyond the hazy border between excessive and acceptable force

that the official had to know he was violating the Constitution even without caselaw

on point. This test entails determining whether application of the excessive force

standard would inevitably lead every reasonable officer in the Defendants’ position

to conclude the force was unlawful.

Under both the general rule and its narrow exception, therefore, pre-existing

law must dictate, that is, truly compel (not just suggest or allow or raise a question

about), the conclusion for every like-situated, reasonable government agent that what

defendant is doing violates federal law in the circumstances for qualified immunity

to be unavailable to a defendant.

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Case No.: 3:04cv17/RV/EMT

Priester, 208 F.3d at 926-927 (internal quotations and citations omitted); see also, e.g., Lee, 284 F.3d

at 1199 (denying qualified immunity--without particularized precedent--in excessive force case

where officer slammed arrestee’s head on car trunk after “she was arrested, handcuffed, and

completely secured, and after any danger to the arresting officer as well as any risk of flight had

passed”); Slicker, 215 F.3d 1225, 1233 (11th Cir. 2000) (denying qualified immunity--without

particularized precedent--to officers who slammed arrestee’s head into pavement, “even though he

was handcuffed and did not resist, attempt to flee, or struggle with the officers in any way); Smith

v. Mattox, 127 F.3d 1416, 1419-20 (11th Cir. 1997) (concluding officer’s conduct was “far beyond

the hazy border” and unlawfulness was “readily apparent even without clarifying caselaw” when

officer, while on plaintiff’s back and handcuffing him, broke plaintiff’s arm requiring surgery for

multiple fractures even though plaintiff at the time was offering no resistance at all).

The undersigned is persuaded that the law was clearly established in November of 2003 (the

date this incident occurred) that what Defendants did (according to Plaintiff’s version of events)

violated Plaintiff’s constitutional rights. According to Plaintiff’s version as previously recounted,

even conceding that Plaintiff was the subject of an arrest warrant for a violent felony and who had

initially failed to respond when Defendants announced their presence prior to entering the house,

the facts remain (at least according to Plaintiff) that after Defendant Hunnicutt discovered Plaintiff

and ordered him to show his hands, Plaintiff sat up on the floor and raised his hands. While Plaintiff

was complying with Defendant Hunnicutt’s command, Hunnicutt hit him in the head with his

flashlight with such force that Plaintiff was knocked unconscious. While Plaintiff was unconscious

the canine, who was in Defendant Coxwell’s control, began biting Plaintiff and dragging him across

the room. When Plaintiff awoke and pleaded with the officers to remove the dog, Defendant

Hunnicutt dropped his knee onto Plaintiff’s back and handcuffed him. Plaintiff was treated at a

hospital for physical injuries from the dog bite and the hit on the head. According to Plaintiff, after

his discovery by Defendants, he surrendered, and at no time after his discovery did he resist arrest,

attempt to flee, or pose a threat to anyone’s safety. On these facts, no particularized preexisting case

law is necessary for it to be clearly established that Defendants alleged actions violated Plaintiff’s

constitutional right to be free from the excessive use of force. Even if Defendants’ conduct did not

come within the “no particularized preexisting case law” exception, the Priester case dictates the

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4

In Priester, Plaintiff was a suspect in the burglary of a golf shop in which approximately $20 of snacks and

crackers were stolen. 208 F.3d at 927. When the police discovered Plaintiff lying in a canal, he voluntarily stood up

and put his hands in the air, thereby immediately submitting to the police. Id. at 923, 927. When ordered by Defendant

to get down on the ground, Plaintiff complied, but Defendant ordered and allowed his dog to attack and bite Plaintiff;

threatened to kill Plaintiff when Plaintiff kicked the dog in an effort to resist the unprovoked attack; and let the dog attack

Plaintiff for at least two minutes. Id. at 927. Considering these facts, the Eleventh Circuit held that no particularized

preexisting case law was necessary for it to be clearly established that what Defendant did violated Plaintiff’s

constitutional right to be free from the excessive use of force. Id. Indeed, no reasonable police officer could believe that

this force was permissible given these straightforward circumstances. Id.

Case No.: 3:04cv17/RV/EMT

conclusion that no reasonable law enforcement officer could believe this force was permissible given

these alleged circumstances.4 Should Plaintiff prove his version of the facts, Defendants are not

entitled to qualified immunity.

IV. CONCLUSION

Based on the foregoing, the undersigned concludes that Defendants are entitled to summary

judgment on Plaintiff’s unlawful entry claim. Defendants are not entitled to summary judgment on

Plaintiff’s excessive force claims, nor are they entitled to summary judgment based on qualified

immunity. Of course the court does not on this record resolve the disputed factual issues. It will

be Plaintiff’s burden to prove his version of the facts to a jury.

Accordingly it is respectfully RECOMMENDED:

1. That Plaintiff’s claims under the Eighth Amendment be DISMISSED.

2. That Defendants’ motion for summary judgment (Doc. 32) be GRANTED IN

PART AND DENIED IN PART as follows:

a. Defendants’ motion for summary judgment be granted as to Plaintiff’s Fourth

Amendment claim of unlawful entry.

b. Defendants’ motion for summary judgment be denied as to Plaintiff’s Fourth

Amendment claims of excessive force against Defendants.

3. That the clerk be directed to return this file to the undersigned for further

proceedings.

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Case No.: 3:04cv17/RV/EMT

At Pensacola, Florida this 9th day of February 2006.

/s/ Elizabeth M. Timothy 

ELIZABETH M. TIMOTHY

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be filed within

ten (10) days after being served a copy thereof. A copy of objections shall be served upon all

other parties. Failure to object may limit the scope of appellate review of factual findings. See

28 U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11th Cir. 1988).

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