Gladis Callwood v. Jay Jones, et al.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-17454
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D.C. Docket No. 2:15-cv-00182-WHA-WC
GLADIS CALLWOOD,
Administratrix of the Estate of Khari
Neville Illidge,
Plaintiff-Appellant,
versus
JAY JONES,
CHARLES H. JENKINS, JR.,
individually and in his official capacity as
Lee County Deputy Sheriff,
STEVEN M. MILLS,
individually and in his official capacity as
Lee County Deputy Sheriff,
RAY SMITH,
individually and in his official capacity as
Lee County Deputy Sheriff,
PHENIX CITY, ALABAMA,
a municipal corporation, et al.,
Defendants-Appellees.
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________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(February 20, 2018)
Before ED CARNES, Chief Judge, BLACK, Circuit Judge, and MAY,* District
Judge.
ED CARNES, Chief Judge:
Khari Illidge died during an encounter with six law enforcement officers.
His mother and administratrix of his estate, Gladis Callwood, filed this suit under
42 U.S.C. § 1983 and related state laws, alleging that each of the officers violated
Illidge’s Fourth Amendment right to be free from excessive force by either
applying excessive force themselves or failing to intervene in another officer’s use
of excessive force. The district court ruled that the officers are protected by
qualified immunity and granted summary judgment in their favor. This is
Callwood’s appeal.
I. FACTS AND PROCEDURAL HISTORY
A. Police Officers Encounter Illidge
On the night that Illidge died, Lee County Sheriff Deputies Steven Mills and
______________________
* Honorable Leigh Martin May, United States District Judge for the Northern District of
Georgia, sitting by designation.
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Ray Smith received a radio dispatch reporting that a naked man was running down
Lee County Road 314.1 The deputies, who were in separate cars and on separate
patrols at the time, began to search for him. An hour later dispatch radioed both
deputies a second time, reporting that the same man had entered a house on Lee
County Road 308.
Deputy Mills found Illidge walking down that street naked and covered in
scratches. He approached Illidge and tried to speak with him. But Illidge
“appeared not to recognize that [Mills] was a deputy sheriff and continued to walk
with a purpose, past [him], down the road.” Illidge then crossed the road, cutting
in front of oncoming traffic, and began walking toward a house that was just off
the road. Mills radioed for backup, telling dispatch that Illidge was mentally ill
and possibly under the influence. He then followed Illidge, asking Illidge to stop
and speak to him.
Illidge ignored his requests and continued forward until he suddenly turned
and began walking back toward Mills. Mills warned Illidge that if he did not stop,
Mills would tase him. Illidge continued forward, and Mills fired his taser. Illidge
did not drop to the ground after being tased, but instead began walking away
1 Because the officers moved for summary judgment, we recite the facts in the light most
favorable to Callwood. See Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234, 1242–43
(11th Cir. 2001).
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toward the porch of a nearby home.
Mills used the taser a second time, touching Illidge’s side with it, and Illidge
fell to the ground. Mills then attempted to pin Illidge, but Illidge “exhibited
superhuman strength” and overpowered him. Mills used his taser three more
times, but it appeared to have no effect. He states that he was “fighting for [his]
life” when Illidge threw him at least ten feet and then ran away.
“After catching [his] breath,” Deputy Mills radioed dispatch the code for
“need[s] assistance.” Deputy Smith arrived at the scene, joined Mills, and the two
followed Illidge to the residence of William and Gloria Warr, where Phenix City
Police Officer David Butler joined them. The deputies repeatedly called for Illidge
to stop, but he ignored them. Smith testified that he believed Illidge may have
suffered from excited delirium.2
Illidge tried to open the rear door of the Warrs’ house, but it was locked. He
then turned back toward the officers, and Deputy Smith discharged his taser,
striking Illidge in the chest. Illidge fell to the ground on his stomach, and Deputy
Mills and Officer Butler tried to handcuff him. Both officers testified that he
began to “resist violently.” As the two men wrestled with Illidge, Smith tased him
thirteen more times. Despite being tased fourteen times by Smith alone, Illidge
2 “Excited delirium” is a condition where the sufferer is in a “state of agitation,
excitability, [and] paranoia.” Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1299 n.4 (11th Cir.
2009). Symptoms include “imperviousness to pain, great strength, bizarre behavior, aggression,
and hallucinations.” Hoyt v. Cooks, 672 F.3d 972, 979 n.7 (11th Cir. 2012).
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continued to resist the officers.
Deputy Smith placed the taser on the ground and helped Mills and Butler
pull Illidge’s arms close enough together to handcuff him. Smith then placed his
metal baton between the handcuffs and Illidge’s spine for leverage. Although he
was handcuffed, Illidge continued to struggle. Gloria Warr, who witnessed parts of
the encounter from inside her home, stated “[Illidge] was trying to move, and [the
officers] were trying to get him to stop.” Warr also testified that she heard the
officers telling Illidge, “Man, please calm down. Calm down.”
At that point, Lee County Sheriff Deputy Charles Jenkins and Phenix City
Police Officers Joey Williams and Shawn Sheely arrived. Williams, who weighed
385 pounds at the time, replaced Smith and placed one knee between Illidge’s
shoulder blades and the other in the middle of Illidge’s back with the balls of his
feet on the ground. Sheely replaced Butler and held the upper portion of Illidge’s
legs while Jenkins held the lower portion. Because Illidge continued to struggle
and kick, the other officers placed Illidge in leg irons and flex cuffs, in effect “hog-
tying” him.3 Even with those restraints in place, Illidge continued to struggle until
he suddenly went limp.
When Illidge became unresponsive, the officers turned him over and saw a
3 “[T]he hogtie position is one where the hands and feet are strapped relatively closely
together behind the back, rendering the subject immobile.” Lewis v. City of W. Palm Beach,
561 F.3d 1288, 1290 n.2 (11th Cir. 2009).
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white, frothy substance and blood coming from his mouth. Not long after that,
paramedics arrived and transported Illidge to a hospital where he was pronounced
dead.
B. Callwood Sues the Officers
In her second amended complaint, Callwood alleged multiple § 1983 claims,
contending that the officers deprived Illidge of his constitutional right to be free
from the use of excessive force.4 She also asserted related state law claims. After
discovery, the officers filed motions for summary judgment, contending that they
were entitled to qualified immunity.
Before responding to their motions, Callwood moved for leave to add a
claim for deliberate indifference to medical needs based on evidence that allegedly
came to light after the officers’ summary judgment motions were filed. The
district court denied Callwood’s motion because she failed to show good cause for
extending the scheduling order deadline to amend the pleadings.
Callwood then filed her corrected opposition to the officers’ motions for
summary judgment. The district court concluded that the officers were entitled to
qualified immunity and granted summary judgment in their favor. Having
4 Callwood also brought claims for failure to train and supervise against Phenix City,
Phenix City Police Chief Raymond Smith, and Lee County Sheriff Jay Jones. Because Callwood
does not challenge the district court’s resolution of those claims, they are deemed abandoned.
AT&T Broadband v. Tech Commc’ns, Inc., 381 F.3d 1309, 1320 n.14 (11th Cir. 2004) (“Issues
not raised on appeal are considered abandoned.”).
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dismissed Callwood’s federal claims, the court declined to exercise jurisdiction
over her related state law claims. This is Callwood’s appeal.
II. DISCUSSION
We review for abuse of discretion the district court’s denial of a motion for
leave to amend the pleadings. Maynard v. Bd. of Regents of Div. of Univs. of Fla.
Dept. of Educ. ex rel. Univ. of S. Fla., 342 F.3d 1281, 1286 (11th Cir. 2003).
We review de novo the grant of summary judgment on the basis of qualified
immunity. Oliver v. Fiorino, 586 F.3d 898, 901 (11th Cir. 2009). “Summary
judgment is appropriate where there is no genuine issue as to any material fact and
the moving party is entitled to a judgment as a matter of law.” Johnson, 263 F.3d
at 1242 (quotation marks omitted). The moving party bears the burden of showing
the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323, 106 S. Ct. 2548, 2553 (1986). Once the moving party has met its burden,
the nonmoving party “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986). The nonmoving
party must “come forward with specific facts showing that there is a genuine issue
for trial.” Id. at 587, 106 S. Ct. at 1356 (quotation marks omitted).
A. Callwood Failed to Show Good Cause to Modify the Scheduling Order
Callwood contends that the district court erred by denying her motion for
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leave to amend to add a claim for deliberate indifference to medical needs. She
alleges that after the deadline to amend the pleadings had passed, she discovered
evidence that shows the officers failed to properly treat Illidge. That evidence was:
(1) deposition testimony by Misty White, the first paramedic at the scene, that
Illidge was handcuffed and shackled when she arrived, making effective CPR
impossible, and (2) deposition testimony by Gloria Warr that, contrary to
statements in her declaration, Warr did not witness the officers perform CPR on
Illidge because she quit watching the encounter before Illidge became
unresponsive.5 The district court denied Callwood’s motion because she failed to
show good cause to modify the pretrial scheduling order. That ruling was not an
abuse of discretion.
Federal Rule of Civil Procedure 16(b) states that the pretrial scheduling
order “must limit the time to join other parties, amend the pleadings, complete
discovery, and file motions.” Fed. R. Civ. P. 16(b)(3)(A) (emphases added). The
scheduling order in this case set the deadline for amending the pleadings as
5 Callwood also contends that Dr. William Warr, Gloria Warr’s husband, is a medical
doctor, who was present on the night Illidge died, offered his services when Illidge became
unresponsive, and was refused by the officers. Because she did not present that theory on
argument in the district court, we will not consider it. See Fils v. City of Aventura, 647 F.3d
1272, 1284 (11th Cir. 2011) (“To prevail on a particular theory of liability, a party must present
that argument to the district court.”); Smith v. Sec’y, Dep’t of Corr., 572 F.3d 1327, 1352 (11th
Cir. 2009) (Where “[t]he district court did not consider that argument because it was not fairly
presented . . . . we will not decide it.”); Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th
Cir. 1998) (per curiam) (“[I]ssues not raised below are normally deemed waived.”); Skinner v.
City of Miami, 62 F.3d 344, 348 (11th Cir. 1995) (“[A]s a general rule, an appellate court will
not consider a legal issue or theory raised for the first time on appeal.”).
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October 9, 2015 — 10 months before Callwood moved for leave to amend. Under
Rule 16(b) a party may modify a scheduling order “only for good cause and with
the judge’s consent.” Id. 16(b)(4); see also Sosa v. Airprint Sys., Inc., 133 F.3d
1417, 1418 (11th Cir. 1998) (“This good cause standard precludes modification
unless the schedule cannot be met despite the diligence of the party seeking the
extension.”) (quotation marks omitted). As the district court ruled, Callwood
cannot meet that standard because she had the information to support her
additional claim before the October deadline. See Sosa, 133 F.3d at 1419
(concluding that a plaintiff failed to show good cause because “the information
supporting the proposed amendment to the complaint was available to [her] even
before she filed suit”).6
Before filing the lawsuit that led to this appeal, Callwood reviewed the
Alabama Bureau of Investigation file. That file contained the Care Ambulance
Patient Care Report, which includes statements by Paramedic White and Kyle
Butler, the second paramedic at the scene, that Illidge was handcuffed and
shackled when they arrived. In light of the paramedics’ report, White’s deposition
testimony to the same effect did not present new information sufficient to show
good cause. See id. The paramedics’ report also states that the officers were
6 The parties focus on Federal Rule of Civil Procedure 15(a). But when a plaintiff, like
Callwood, files a “motion to amend . . . after the scheduling order’s deadline, she must first
demonstrate good cause under Rule 16(b) before we will consider whether amendment is proper
under Rule 15(a).” Sosa, 133 F.3d at 1419.
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performing CPR when the paramedics arrived, showing that Callwood had
evidence, independent of Warr’s incorrect affidavit testimony, that the officers
performed CPR. Because Callwood had “the information supporting the proposed
amendment to the complaint . . . before she filed suit,” she has not demonstrated
good cause to modify the scheduling order deadline, and the district court did not
abuse its discretion by denying her motion to amend.7 See id.
B. The Officers Are Entitled to Qualified Immunity
Callwood next contends that the officers are not entitled to qualified
immunity.8 “Qualified immunity offers complete protection for government
officials sued in their individual capacities if their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quotation
7 In her motion to amend Callwood also asserted that after the scheduling order deadline
had passed, she found evidence that when the officers encountered Illidge they thought he
suffered from excited delirium. Callwood did not argue that to us as a ground for modifying the
scheduling order, so it is deemed abandoned. See AT&T Broadband, 381 F.3d at 1320 n.14.
8 In challenging the summary judgment in favor of the officers, Callwood asserts that the
district court failed to consider discrepancies in the testimony of Gloria Warr and Norman and
Leigh Ann Woodham, which raise a genuine issue of fact about the officers’ credibility. But
Callwood moved the court to strike from the record the allegedly false or inconsistent testimony
in Warr’s declaration and in the Woodhams’ affidavits. The district court granted that motion
and for that reason did not consider any discrepancies in those documents in its summary
judgment ruling. Because Callwood’s motion to strike kept the court from considering the
inconsistent statements, she may not now argue that it erred by not considering them. Cf. United
States v. Harris, 443 F.3d 822, 823–24 (11th Cir. 2006) (“The doctrine of invited error is
implicated when a party induces or invites the district court into making an error. Where a party
invites error, the Court is precluded from reviewing that error on appeal.”) (quotation marks and
citations omitted).
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marks omitted).
Our qualified immunity analysis proceeds in two steps. First, the
government official must “establish that he was acting within the scope of his
discretionary authority when the allegedly wrongful acts occurred.” Oliver, 586
F.3d at 905 (quotation marks omitted). Callwood does not dispute that point, so
the burden shifts to her to show that qualified immunity is inappropriate. Id.
Qualified immunity is inappropriate if Callwood establishes that the officers
violated a constitutional right and that the right was “‘clearly established’ at the
time of the incident.” Id. We have the discretion to “decide these two issues in
either order,” Wate v. Kubler, 839 F.3d 1012, 1018–19 (11th Cir. 2016), meaning
“discussion of a constitutional violation may become unnecessary for qualified
immunity purposes when the right was not clearly established,” Lewis, 561 F.3d at
1291.
Callwood argues that each officer violated Illidge’s Fourth Amendment right
to be free from excessive force by either using excessive force himself or failing to
intervene in a fellow officer’s use of excessive force. She asserts those claims in
relation to three distinct instances of force: (1) when Deputy Mills tased Illidge,
(2) when Deputy Smith tased Illidge, and (3) when the officers used restraints and
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their body weight collectively to secure Illidge.9
We begin by analyzing whether those actions violated clearly established
law. To be clearly established, the right must be “sufficiently clear that every
reasonable official would have understood that what he is doing violates that
right.” Mikko v. City of Atlanta, 857 F.3d 1136, 1146 (11th Cir. 2017) (quotation
marks omitted). “The salient question is whether the state of the law at the time of
an incident provided ‘fair warning’ to the defendants that their alleged conduct was
unconstitutional.” Salvato v. Miley, 790 F.3d 1286, 1292 (11th Cir. 2015)
(quotation marks omitted and alterations adopted). That standard does not require
“[e]xact factual identity with a previously decided case[,] . . . but the unlawfulness
of the conduct must be apparent from pre-existing law.” Coffin v. Brandau, 642
F.3d 999, 1013 (11th Cir. 2011) (en banc). When analyzing previous cases, we
look to binding decisions of the Supreme Court, this Court, and the highest court of
the pertinent state. Wate, 839 F.3d at 1018.
1. Deputies Mills and Smith Did Not Violate Clearly Established Law When They
Tased Illidge
Callwood argues that Deputies Mills and Smith, the first two officers on the
9 Callwood discusses those three instances together in her briefs, suggesting that the
officers’ actions throughout the night collectively rise to the level of “excessive force.” We
could find no decisions analyzing the qualified immunity defense in that way. And some of our
decisions address the issue much more narrowly, analyzing each taser strike by an individual
officer as its own instance of “force.” See, e.g., Oliver, 586 F.3d at 906 (holding that the
officer’s “initial, single Taser shock to calm the suspect may have been justified,” but the seven
shocks after that were excessive).
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scene, violated Illidge’s clearly established right when they tased him. In support
of her arguments, she relies heavily on our opinion in Oliver, which held that
officers were not entitled to qualified immunity when they tased a suspect seven
times while he lay clenched up on the hot asphalt pavement. 586 F.3d at 903. We
concluded that despite the lack of fact-specific, on point precedent, “any
reasonable officer would have recognized that his actions were unlawful” because
“the force employed was so utterly disproportionate to the level of force
reasonably necessary.” Id. at 908. The repeated use of the taser in that case was
clearly unlawful because the suspect:
was not accused of or suspected of any crime, . . . . was not threatened
with arrest or apprehension at any time prior to (or after) the use of
force[,] . . . . posed no immediate threat of danger to officers[,] . . . .
did not act belligerently[,] . . . . was largely compliant and
cooperative[,] . . . . did not pose a grave danger to others[,] . . . . [and]
was not actively resisting arrest nor attempting to evade arrest by
flight.
Id. at 906–07.
This case does not present the “obvious clarity” type of situation that was
present in Oliver. Throughout the night Illidge acted erratically, ignored
commands to stop, and tried to enter homes. Deputy Mills used the taser initially
because Illidge ignored his command and kept coming toward Mills, and he
continued to use the taser because Illidge resisted so violently that Mills was
convinced he was “fighting for [his] life.” When Deputy Smith tased him, Illidge
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was fighting three officers’ attempts to restrain him. In those circumstances,
neither Mills’ nor Smith’s use of force was so “utterly disproportionate” that “any
reasonable officer would have recognized that his actions were unlawful.” Id. at
908.
Callwood also argues that Oliver clearly established that “repeatedly
shocking Illidge[,] who exhibited . . . symptoms of ‘Excited Delirium[,]’ . . . after
he had fallen to the ground was unlawful.” Although the point at which a suspect
falls to the ground is relevant to the analysis because it may suggest he is no longer
resisting, see id. at 901 (suspect “was lying on the hot pavement, immobilized and
clenched up”), it is not the dividing point between excessive and non-excessive
force. Instead that point usually turns on whether the suspect is completely
restrained or otherwise resisting arrest. See Mobley v. Palm Beach Cty. Sheriff
Dep’t, 783 F.3d 1347, 1356 (11th Cir. 2015) (“[F]orce applied while the suspect
has not given up and stopped resisting and may still pose a danger to the arresting
officers, even when that force is severe, is not necessarily excessive.”); see also
Hoyt, 672 F.3d at 978–80 (refusing to extend Oliver’s holding when officers tased
the suspect after he fell to the ground because he “continued to pose a danger” and
“never ceased his vigorous resistance to the attempts to handcuff him”); Mann, 588
F.3d at 1306 (concluding that the “use of a [t]aser[ ] was appropriate” when the
suspect’s “behavior was violent, aggressive, and prolonged”).
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When Deputies Mills and Smith tased Illidge, he was unrestrained and
aggressively resisting the officers’ attempts to stop and secure him. Given those
facts and our holdings in Mobley, Hoyt, and Mann, the use of a taser by the two
deputies did not violate clearly established law.10 Both officers are entitled to
qualified immunity.
In addition to arguing that Deputy Smith’s taser use was itself a
constitutional violation, Callwood argues that the other officers violated Illidge’s
constitutional right by not intervening in Smith’s use of force.11 An officer’s duty
to intervene is triggered when he sees a fellow officer use excessive force. See
Riley v. Newton, 94 F.3d 632, 635 (11th Cir. 1996) (finding the officer had no
duty to intervene because he “observed no use of excessive force”). Because the
law does not clearly establish that Smith used excessive force, the other officers
had no duty to intervene. See Barton v. Norrod, 106 F.3d 1289, 1299 (6th Cir.
1997) (concluding that an observing officer was entitled to qualified immunity
because “there was no clearly established right being violated for which [he] had a
duty to intervene and protect”).
10 Because we conclude that neither Mills nor Smith violated clearly established law, we
do not decide whether they violated Illidge’s constitutional right. See Lewis, 561 F.3d at 1291.
11 Deputy Mills’ use of a taser occurred when no other officer was present, so there could
be no duty to intervene at that time.
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2. The Officers Did Not Violate Clearly Established Law When They Restrained
Illidge
Callwood next argues that all of the officers used excessive force when they
hogtied and “appl[ied] their body weight” to Illidge.12 The officers assert that they
held Illidge down and called for additional restraints after he was handcuffed
because Illidge continued to kick and resist. Callwood responds that a jury could
reasonably infer that Illidge continued to move not because he was resisting but
because he was struggling to breathe. Tragically that may be so, but for qualified
immunity purposes we must take the facts as a reasonable officer on the scene
could have viewed them. See Vinyard, 311 F.3d at 1347. Throughout the incident,
Illidge resisted all of the officers’ attempts to subdue him and ignored their
repeated requests to calm down. A reasonable officer could have believed that
Illidge continued to resist arrest and that he posed a danger to the officers and
himself by resisting. For that reason, we cannot say that the officers’ use of force
was so “utterly disproportionate” that “any reasonable officer would have
recognized that his actions were unlawful.” Oliver, 586 F.3d at 908.
Nor does our binding precedent clearly establish that physically restraining
Illidge in those circumstances was unlawful. Callwood cites our conclusion in Lee
12 Callwood asserts the officers “dogpile[d]” on top of Illidge, but she points to no
evidence that the six of them were holding or on top of Illidge at the same time. The record
shows that, at most, three officers held him down at any given time. And although Williams
weighed 385 pounds at the time, the evidence shows that he remained on the balls of his feet
throughout the encounter and never placed his full body weight on Illidge.
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v. Ferraro, 284 F.3d 1188 (11th Cir. 2002), arguing that it clearly establishes the
general principle that any use of force after a suspect is completely secured and the
danger to the arresting officer has passed constitutes excessive force.
Although the point at which a suspect is handcuffed will also often be the
point at which he no longer poses a danger, that is not always the case. See Lewis,
561 F.3d at 1292. In Lewis we held that officers did not violate clearly established
law when they physically restrained and hogtied a suspect because he repeatedly
ignored their requests to calm down and continued to resist even after being placed
in handcuffs and leg restraints. Id. The suspect was “an agitated and
uncooperative man with only a tenuous grasp on reality.” Id. (quotation marks
omitted). And he “remained a safety risk to himself and others” because he
continued to kick and struggle and refused to remain calm. Id.; see also Garrett v.
Athens-Clarke County, 378 F.3d 1274, 1280 (11th Cir. 2004) (holding that officers
were entitled to qualified immunity when they held a suspect to the ground,
sprayed him with pepper spray, and hogtied him because the suspect “consistently
put his life and the lives of others in danger” and showed “that he ha[d] every
intention of fighting and forcibly escaping arrest if possible”).
Like the suspect in Lewis, Illidge resisted the officers’ attempts to stop him,
ignored their commands to calm down, and appeared to suffer from excited
delirium, suggesting that he also had “only a tenuous grasp on reality.” See Lewis,
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561 F.3d at 1292. Multiple officers testified that Illidge exhibited “superhuman”
strength and that he struggled and kicked even after he was restrained. Given those
facts and our holding in Lewis, the officers’ actions did not violate clearly
established law, and as a result, they are entitled to qualified immunity.13 And
because the officers did not violate clearly established law, none of the officers had
a duty to intervene in the other officers’ use of restraints. See Riley, 94 F.3d at
635; Barton, 106 F.3d at 1299.
AFFIRMED.14
13 Because we conclude that the officers did not violate clearly established law, we do not
decide whether they violated Illidge’s constitutional right to be free from excessive force. See
Lewis, 561 F.3d at 1291.
14 The district court did not abuse its discretion by declining to exercise supplemental
jurisdiction over the remaining state law claims. See Raney v. Allstate Ins. Co., 370 F.3d 1086,
1088–89 (11th Cir. 2004).
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