1 

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. 

____________________________________________________________

DEFENDANT NOWLIN’S MOTION TO DISMISS PLAINTIFF’S FIFTH 

AMENDED COMPLAINT

Defendant Aaron Nowlin (hereinafter referred to as “Nowlin”) pursuant 

to the Fed. R. Civ. P. 12(b)(6) and N.D. Fla. Local R. 7.1 moves to dismiss 

Plaintiff’s Fifth Amended Complaint (ECF No. 30) and in support thereof, 

states 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.

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

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

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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 Defendant. 

7. On February 14, 2023, this Court ordered the Clerk of Court to 

issue a summons to Defendant Nowlin, along with a copy of the Complaint 

and the Court’s Order and ordered that the documents be provided to the

U.S. Marshals Service.

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8. Nowlin was served with process on February 22, 2023, and the 

return of service was filed with the Court on March 15, 2023.

 9. 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.

10. 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 Nowlin. Plaintiff has failed 

to allege sufficient facts to establish a constitutional violation.

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

Nowlin is entitled to qualified immunity. 

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

Defendant Nowlin respectfully requests that this Court grant his Motion to 

Dismiss Plaintiff’s Fifth Amended Complaint.

MEMORANDUM OF LAW

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

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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 

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 that includes a narrative 

by Nowlin, as the factual basis for his claims. Indeed, the Plaintiff 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. 

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

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

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, Defendant Nowlin 

is 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 Nowlin in both his

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

fails to state an official capacity claim against him. 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 

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entity.” Scott v. Taylor, 405 F.3d 1251, 1254 (11th Cir. 2005) (citing Graham, 

473 U.S. at 165 – 67).

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 against Nowlin, this Court should dismiss the official 

capacity claim 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 Nowlin

Turning to the individual capacity claim, Plaintiff alleges two claims 

against Nowlin, a violation of the Fourth Amendment and a violation of the 

Eighth Amendment. ECF No. 30 at 13. However, the claim against Nowlin 

appears 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 

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

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, Nowlin will address herein that Plaintiff has failed to state a 

claim for excessive force under the Fourth Amendment and that the 

allegations do not set forth a constitutional violation against him. 

Claims of excessive force under the Fourth Amendment are measured 

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

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

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 Nowlin because, based on Plaintiff’s own allegations and the 

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

many narratives included in the incident report establish that no 

constitutional violation occurred on April 17, 2019. When Plaintiff was 

brought into the jail facility, he was observed chewing on something in his 

mouth. ECF No. 30-1 at 3, 6. The narrative drafted by Defendant Eric 

Matthew Hays’ stated that both he and Defendant David Michael 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 that time, Plaintiff was observed to be sweating and 

under the influence of an intoxicant. Id. Nowlin stated in his narrative that he 

also gave Plaintiff several commands at this stage to spit out what was in his 

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mouth or remove the item. Id. at 5. Nowlin stated that Defendant Patrick Roy 

Campbell also gave numerous similar orders, but that Plaintiff refused those 

commands as well. Id. Defendant John Robert Pendleton’s narrative also 

reflects that numerous orders were given to 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. There, the narratives 

reflect that Plaintiff continued to be given orders and that he continued to 

refuse those directives. Id. at 4 – 7. The narratives outline that 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. Mandibular pressure points were 

administered and Plaintiff was confirmed to be holding 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. It was at this time that Plaintiff was placed on the floor to complete the 

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

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

one of the deputies’ taser. Id. at 5 – 6. Plaintiff did not cooperate with the 

attempted strip 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 deputies 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. 

Plaintiff also grabbed the wrist of Defendant Pendleton and a single strike to 

the chest was utilized to stun Plaintiff and release the grip, although Plaintiff 

resisted responding to the single strike. Id. at 5. It was during this resistance 

that a contact tase to Plaintiff’s chest was administered to gain compliance. 

Id. at 5. 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 

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ambulance left the area, Plaintiff spit out the bag in his mouth, which was 

confiscated. Id. at 11. 

Nowlin

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

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

and unusual punishment when he threw the Plaintiff to the ground who was 

locked up in a seizure and could not comply with his commands.” ECF No. 

30 at 13, ¶3. Plaintiff also alleges that Nowlin “held the Plaintiff’s eyes open 

so that Lt. Hays could administer O.C. (pepper spray) directly into the eye 

sockets” and that he “assisted in placing the Plaintiff in restraints.” Id. 

However, as previously established, the actions alleged by Plaintiff do not 

state a claim for excessive force; simply being present during the

administration of O.C. spray3 and the application of restraints were all 

objectively reasonable in light of Plaintiff’s continued resistance and 

disobedience to lawful commands. 

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 

3 There is no evidence to support Plaintiff’s baseless allegation that Nowlin 

held open the eyes of Plaintiff during the administration of the O.C. spray.

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numerous verbal commands by Nowlin to spit out the item that was willfully 

holding in his mouth but refused to do so. Plaintiff also attempted to engage 

in physical violence toward the Defendants, including Nowlin, in this matter, 

by being physically combative and spitting blood at them. Thus, in evaluating 

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

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

confronting [him], without regard to [his] underlying intent or motivation.” 

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

as well as the other detention deputies, reasonably believed that Plaintiff 

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

No. 30-1 at 5. The concern for the safety 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; however, there are no facts in the incident report which support 

Plaintiff’s allegation that he was “thrown to the ground” by Nowlin. There is 

no reference whatsoever in the incident report that Nowlin ever touched 

Plaintiff once Plaintiff arrived at the jail and entered into the intake area. 

The narratives in ECF No. 30-1 only support that Nowlin assisted in 

restraining Plaintiff during the strip search while in the change out room, due 

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to Plaintiff’s refusal to comply with numerous commands, and then assisting 

Plaintiff to his feet. ECF No. 30-1 at 5. Nowlin further states that he assisted 

in placing Plaintiff into the restraint chair, as Plaintiff resisted going into the 

chair, and then later held Plaintiff’s head so that he could be secured into the 

restraint chair. Id. During the course of the strip search, Plaintiff had become 

physically non-compliant, which necessitated Plaintiff being restrained in the 

restraint chair. 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). 

While numerous means of compliance had been utilized prior to the 

use of the restraint chair, Plaintiff remained non-compliant and thereafter 

became physically combative. It is at this stage that Plaintiff grabbed the wrist 

of Defendant Pendleton and Nowlin stated that, as a result of Plaintiff 

grabbing Defendant Pendleton by the wrist, he utilized a single strike to his 

chest. ECF No. 30-1 at 5. After the single strike, Plaintiff did not release the 

wrist of Defendant Pendleton, so he was tased by Defendant Hays and 

Plaintiff ultimately released the wrist at that time. Id. Nowlin thereafter 

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attempted to hold Plaintiff still so that he could be further secured into the 

restraint chair as Plaintiff was actively resisting. Id. With regards to Plaintiff’s 

act of grabbing the arm of one of Defendant Pendleton, this act could be 

reasonably interpreted as Plaintiff responding to the deputy’s force with 

physical force of his own. This is not a case where Nowlin used gratuitous 

force against a non-resisting handcuffed Plaintiff, which the Eleventh Circuit 

has held to be unconstitutional. Hadley v. Gutierrez, 526 1324, 1333 (11th 

Cir. 2008). The single strike was a direct result of Plaintiff’s physical force 

toward another deputy who was engaged in lawful efforts to restrain Plaintiff. 

Nowlin is thus justified in his use of force toward Plaintiff, via a single strike 

to the chest, in order to secure the release of Defendant Pendleton’s wrist. 

As to the other actions Plaintiff takes issue with all were objectively 

reasonable under the circumstances alleged. First, Nowlin’s holding of 

Plaintiff’s arm during the course of the strip search, after Plaintiff’s handcuffs 

were removed during the search, was objectively reasonable; an inmate who 

has been actively resisting lawful commands for a lengthy period of time 

cannot simply be released from physical control when his handcuffs are 

removed; to do otherwise would be a safety concern. Plaintiff is described 

as being “combative” during the attempt to strip search him. It is reasonable 

to strip search an inmate who enters a secure facility with an item concealed 

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in his mouth in order to determine whether any other items of contraband are 

concealed on his body. Nowlin’s later assist to Plaintiff, in bringing him to a 

standing position from the floor after the strip search, was likewise 

reasonable, when Plaintiff refused to stand on his own despite being ordered 

to do so. There are no facts to support any assertion that Nowlin acted in a 

manner which could be construed as objectively unreasonable. The other 

allegations made by Plaintiff against Nowlin are wholly unsupported in the 

incident report, which was provided by Plaintiff in support of his claims 

against Nowlin, and should be disregarded. Accordingly, Plaintiff has failed 

to state a claim for excessive force against Nowlin 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 

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(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 

should be applied to Nowlin unless Plaintiff can allege facts which show that 

his 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 Nowlin was acting in any 

other capacity other than as a deputy employed by the Santa Rosa County 

Sheriff’s Office at the time of the allegations. In his Complaint, Plaintiff refers 

to Nowlin by his title, that being “classification and release deputy.” ECF No. 

30 at 13. Nowlin’s narrative in the incident report also confirms that his 

actions were “undertaken pursuant to the performance of [his] duties and 

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within [his] 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)). The

processing of an arrestee through intake for entrance into a jail would involve 

searches for contraband, which would be considered part of the performance 

of a detention deputy’s normal job duties and within their delegated authority. 

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

Nowlin has satisfied the “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, the 

acts complained of by Plaintiff do not constitute a constitutional violation

because, in light of the supportive exhibit in ECF No. 30-1, the actions of 

Nowlin were reasonable and necessary. The force used against Plaintiff on 

April 17, 2019, was “reasonably proportionate to the need for that force.” Lee, 

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284 F.3d at 1198. Plaintiff resisted numerous lawful commands by the 

Defendants, including Nowlin, and posed an objectively immediate threat to 

his own safety and, at various points, the safety of the detention deputies. 

Plaintiff has failed to establish that Nowlin 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 

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

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. Nowlin is entitled to qualified immunity.

CONCLUSION

Plaintiff has failed to state a claim of excessive force against Nowlin. 

Accordingly, because Plaintiff has failed to allege sufficient facts which 

establish to that his constitutional rights were violated by Nowlin, Nowlin is

entitled to qualified immunity. Plaintiff has been provided five opportunities 

to allege a viable constitutional violation 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 Complaint is due to be dismissed with prejudice 

against Nowlin.

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CERTIFICATE OF COMPLIANCE OF RULE 7.1

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

and memorandum is 4576 words in length. 

Respectfully submitted this 13th day of March 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 March 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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