Vance R. Johnson v. Sheriff R.L. Butch Conway , 688 F. App'x 700 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-12129
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cv-00524-RWS
VANCE R. JOHNSON,
Plaintiff-Appellant,
versus
SHERIFF R.L. BUTCH CONWAY,
CHRISTOPHER REVELS,
SO#692,
ROBERT BAILEY,
SO#893,
TOCHI DAVIS,
SO#1145,
CORIZON HEALTH, INC.,
a.k.a. Corizon, Inc.,
Defendants-Appellees,
C. LUCAS, et al.,
Defendants.
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________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(May 15, 2017)
Before TJOFLAT, WILLIAM PRYOR, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Vance Johnson filed this civil-rights lawsuit under 42 U.S.C. § 1983 and
Georgia state law arising out of his detention at the Gwinnett County Jail in
February 2011. Johnson claims that medical staff administered a test for
tuberculosis without his consent and that detention officers disciplined him and
used excessive force against him in retaliation for his refusal to consent to the test.
Pertinent to this appeal, Johnson sued Deputies Christopher Revels, Robert Bailey,
and Tochi Davis (“the detention officers” or the “officers”), asserting federal-law
claims of excessive force under the Fourteenth Amendment and state-law claims of
battery; Sheriff R.L. Butch Conway, asserting that Conway was liable as a
supervisor under § 1983 for maintaining a policy which allowed excessive force to
be used; Nurse Susan Fajardo, asserting a federal-law claim of First Amendment
retaliation and state-law claims of medical negligence and battery; and Corizon
Health, Inc. (“Corizon”), Fajardo’s employer, asserting a state-law claim of
vicarious liability.
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The district court granted summary judgment to the detention officers and
the Sheriff (collectively, the “County defendants”), concluding that the detention
officers were protected by qualified immunity under federal law and by official
immunity under Georgia state law and that the Sheriff was not liable as a
supervisor under § 1983. The claims against Fajardo and Corizon (collectively, the
“medical defendants”) were tried before a jury, which returned a verdict in their
favor.
On appeal, Johnson contends that sufficient evidence precluded summary
judgment on his claims against the County defendants and that the district court
gave an erroneous jury instruction for his medical-negligence claim against the
medical defendants. After careful review, we agree with the district court that the
detention officers were entitled to qualified and official immunity and that the
Sheriff is not liable as a supervisor, and we conclude that Johnson has not
established plain error regarding the jury instruction. Accordingly, we affirm.
I. Factual Background
The relevant facts, presented in the light most favorable to Johnson for
purposes of reviewing the summary-judgment ruling, are these. See Moore v.
Pederson, 806 F.3d 1036, 1041 (11th Cir. 2015), cert. denied, 136 S. Ct. 2014
(2016). Johnson was arrested and booked into the Gwinnett County Jail in
February 2011. During the admission process, he underwent medical screening by
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nurses employed by Corizon, which had contracted to provide medical services at
the jail. Johnson was asked to sign a form consenting to receive medical treatment
while detained at the jail. Believing that he would soon be released, Johnson stated
that he would not require medical treatment and refused to sign the consent form.
Instead, Johnson signed a Refusal of Clinical Services form.
After Johnson signed the refusal form, detention officers and nurses made
multiple attempts to give Johnson a pure protein derivative test (“PPD test”) to test
for the presence of tuberculosis. In a PPD test, a small needle is inserted just
underneath the skin. The PPD test is part of the admission process for the jail in
order to control the spread of tuberculosis, which is highly contagious. Johnson
refused the PPD test three times.
At some point, Nurse Fajardo made a fourth attempt to administer the PPD
test to Johnson. Johnson sat in front of Fajardo, who told him to put his arm down,
wiped off his arm, and administered the PPD test. According to Johnson, he told
Fajardo that he had signed a refusal-of-medical-treatment form, but she
administered the test, anyway. Fajardo testified that she was unaware of Johnson’s
refusal-to-consent form and that he had verbally consented to the test.
A few hours later, Fajardo asked Johnson to sign documentation stating that
he had authorized the jail to give him the PPD test only. Johnson refused to sign
the form. Fajardo conferred with Deputy Revels, who was in the room at the time.
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Revels came over and told Johnson that “he was going to jump on [Johnson’s] ass”
if Johnson did not sign the paperwork. Revels also threatened to call the “attack
squad,” apparently referring to the Jail’s Rapid Response Team (“RRT”), and
warned that Johnson would receive a “failure to comply” disciplinary report if he
refused to sign the document. Johnson steadfastly refused to sign the form.
Ultimately, Revels did not call the RRT. Instead, Revels spoke with his
supervisor, who advised that Johnson would have to receive a disciplinary report
for failure to comply if he did not sign. At the supervisor’s instruction, Revels
asked two detention officers, Deputies Bailey and Davis, to move Johnson from his
cell to the disciplinary unit. Revels told them that Johnson “had refused to sign
some medical paperwork and was being charged with a failure to comply
infraction.” Revels also told them that Johnson was compliant and not resistant.
Gwinnett County Department of Corrections’s standard practice for moving
an inmate to the disciplinary unit for failure to comply with an officer’s
instructions involves having the inmate get down on the floor and put his hands
behind his back so that he can be handcuffed. The escorting officers then assist the
inmate to his feet and escort him to the assigned destination at the inmate’s pace.
Davis explained that a detainee who is being transferred for discipline is walked
backward so he cannot see where he is going. Davis stated that deputies on either
side of the detainee walk arm in arm with the detainee as he is being transferred.
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Bailey and Davis instructed Johnson to lie face down on the floor with his
hands behind his back. Johnson complied, and the deputies handcuffed him and
then pulled him up from the ground. Johnson testified that they put the handcuffs
on so tight that his hands started feeling numb. Johnson stated that “[b]oth of them
just grabbed [him], started bending [his] arms all the way back, bending [his] wrist,
dislocating [his] arm from [his] shoulder, [and] started dragging [him].” Though
Johnson testified that he was “dragged” backward by the deputies throughout the
jail, he also indicated that he was able to stay on his feet. Bailey and Davis took
Johnson to a solitary-confinement cell. The officers both described the transfer as
uneventful and in accordance with normal procedures.
Besides the above descriptions, Johnson’s testimony is not clear on the
precise details of the deputies’ actions, but Johnson testified that the actions caused
him “excruciating pain.” Johnson stated that he received medical treatment after
he was released from jail and that he was diagnosed with a shoulder injury. Based
on the pain and injury he experienced, Johnson argues that a reasonable jury could
infer that the deputies used excessive force against him.
Conway has been Sheriff of Gwinnett County since 1997. He is responsible
for the overall administration of the Sheriff’s Office, including the jail. The jail’s
Use of Force Policy directs staff to “use only that force which is necessary to
maintain the security and safety” of all persons within the jail. The policy
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authorizes detention officers to use certain levels of force to ensure that inmates
comply with lawful orders or directions. The policy also directs staff to avoid
resorting to physical force if possible. The defendants acknowledged that a
detention officer would violate the Use of Force Policy if he were to “use force to
make an inmate sign a document he had a right to refuse to sign.”
II. Procedural History
Johnson filed suit in the United States District Court for the Northern
District of Georgia in February 2013. He filed the operative second amended
complaint in September 2013.1 The district court granted summary judgment to
the detention officers (Revels, Davis, and Tochi), finding that they were entitled
both to qualified immunity with respect to Johnson’s § 1983 excessive-force
claims under the Fourteenth Amendment and to official immunity with respect to
his battery claims under Georgia state law. As for Johnson’s § 1983 claim against
Sheriff Conway, the court concluded that Johnson’s claim amounted to one based
on respondeat superior, which is not a viable theory of supervisor liability under
§ 1983.
1
Besides the claims at issue in this appeal, Johnson raised additional claims in the district
court, including claims of negligence and First Amendment retaliation against Revels, Bailey,
and Davis, an excessive-force claim against Fajardo, and similar claims against another nurse.
Johnson does not address these claims on appeal, so we deem them abandoned. See Sapuppo v.
Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014) (issues not raised on appeal are
abandoned).
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The district court denied summary judgment to the medical defendants,
finding genuine issues of material fact as to whether Fajardo obtained Johnson’s
consent before administering the PPD test. Johnson’s claims against these
defendants were tried before a jury over two days.
On the second day of trial, the jury retired to begin its deliberations after
receiving its instructions from the district court. Soon after, Johnson’s counsel
raised for the first time the issue of whether the medical negligence instruction
should be amended. The instruction, to which counsel appears to have jointly
agreed at the charge conference, told jurors that expert testimony was necessary to
establish causation. Counsel stated that expert testimony was not necessary in this
case because the issue to be tried was simply the factual question of consent.
Nevertheless, counsel acknowledged that the instruction was “a correct statement
of the law” and “probably not error per se,” and he did not request any corrective
action at that time. Rather, counsel merely suggested that they “might need to
think about how to deal with it” if the jury comes back with a question.
Later, when the jury sent a note asking for clarification of the negligence
instruction, Johnson’s counsel asked the court more directly to remove the
language about expert testimony when giving the jury a rephrased instruction. The
court denied the request, expressing concern about changing the instruction after
the jury had begun its deliberations. The jury returned a verdict in favor of Fajardo
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and Corizon on all claims. Following entry of judgment, Johnson brought this
appeal.
We address separately the claims against the County defendants and the
claims against the medical defendants.
III. Claims against the County Defendants
We review de novo a district court’s grant of summary judgment, including
on grounds of qualified immunity. Holmes v. Kucynda, 321 F.3d 1069, 1077 (11th
Cir. 2003). Summary judgment is appropriate only when the moving party
demonstrates that no disputed issue of material fact exists. Carter v. Butts Cty.,
Ga., 821 F.3d 1310, 1318 (11th Cir. 2016). In reviewing a ruling on a summary-
judgment motion, we accept the non-movant’s version of the facts as true and draw
all reasonable inferences in his favor. Id. We may affirm a district court’s grant of
summary judgment on any ground supported by the record, even if that ground was
not relied on by the district court. Feliciano v. City of Miami Beach, 707 F.3d
1244, 1252 (11th Cir. 2013).
A. Section 1983 Claim for Excessive Force under Fourteenth Amendment
1. Nature of the Claim
Johnson claims that Deputies Revels, Bailey, and Davis used excessive force
against him while he was detained at the Gwinnett County Jail following his arrest.
The Supreme Court instructs that in deciding whether force deliberately used
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against a pretrial detainee is constitutionally excessive in violation of the
Fourteenth Amendment, “a pretrial detainee must show only that the force
purposely or knowingly used against him was objectively unreasonable.” Kingsley
v. Hendrickson, 576 U.S. ___, 135 S. Ct. 2466, 2473 (2015). A showing of the
officer’s state of mind or subjective awareness that the force was unreasonable is
not required in this analysis. See id. at 2472–73. Thus, the standard we previously
used to determine whether a defendant used excessive force under the Fourteenth
Amendment—which required the plaintiff to show that the defendant applied the
force “maliciously or sadistically for the very purpose of causing harm,” see
Bozeman v. Orum, 422 F.3d 1265, 1271 (11th Cir. 2005)—has been abrogated by
Kingsley.
The Supreme Court instructs that “objective reasonableness turns on the
facts and circumstances of each particular case.” Kingsley, 135 S. Ct. at 2473
(internal quotation marks omitted). Considerations bearing on the reasonableness
of the force used include “the relationship between the need for the use of force
and the amount of force used; the extent of the plaintiff’s injury; any effort made
by the officer to temper or to limit the amount of force; the severity of the security
problem at issue; the threat reasonably perceived by the officer; and whether the
plaintiff was actively resisting.” Id. The objective-reasonableness determination
must be made “from the perspective of a reasonable officer on the scene,” and it
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must account for the legitimate interests of the institution by “appropriately
deferring to ‘policies and practices that in th[e] judgment’ of jail officials ‘are
needed to preserve internal order and discipline and to maintain institutional
security.’” Id. (quoting Bell v. Wolfish, 441 U.S. 520, 540, 547 (1979)). A pretrial
detainee can prevail by showing “that the challenged governmental action is not
rationally related to a legitimate governmental objective or that it is excessive in
relation to that purpose.” Id. at 2473–74.
2. Qualified Immunity
A public official sued in his or her individual capacity may assert the
defense of qualified immunity. Qualified immunity aims to strike a balance
between “the need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.” Pearson v. Callahan, 555
U.S. 223, 231 (2009). The defense generally protects government officials
engaged in job duties from individual liability unless they violate “clearly
established [federal] statutory or constitutional rights of which a reasonable person
would have known.” Keating v. City of Miami, 598 F.3d 753, 762 (11th Cir. 2013)
(alteration in original) (internal quotation marks omitted). The protection is for
“all but the plainly incompetent or one who is knowingly violating the federal
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law.” Carter, 821 F.3d at 1319 (quoting Lee v. Ferraro, 284 F.3d 1188, 1194
(11th Cir. 2002)).
Officials asserting qualified immunity must first establish that they were
acting within the scope of their discretionary authority at the time of the alleged
misconduct. Id. There is no dispute that Revels, Bailey, and Davis met their
burden in this regard. Thus, the burden shifted to Johnson to overcome the defense
of qualified immunity by showing “both that the officer’s conduct violated a
constitutionally protected right and that the right was clearly established at the time
of the misconduct.” Id.; see Pearson, 555 U.S. at 232. The requirement that the
right be “clearly established” ensures “that a reasonable official would understand
that what he is doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002)
(internal quotation marks omitted). “We may consider whether the plaintiff has
satisfied his burden in any order.” Carter, 821 F.3d at 1319.
3. Discussion
Here, like the district court, albeit for different reasons, we do not reach the
question of whether Johnson’s constitutional rights were violated because he has
not shown that the detention officers violated a clearly established right. See
Feliciano, 707 F.3d at 1252.
We evaluate whether a right was clearly established “in light of the specific
context of the case, not as a broad general proposition.” Coffin v. Brandau, 642
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F.3d 999, 1013 (11th Cir. 2011) (en banc) (internal quotation marks omitted).
Therefore, “[f]or the law to be ‘clearly established,’ case law must ordinarily have
been earlier developed in such a concrete and factually defined context to make it
obvious to all reasonable government actors, in the defendant’s place, that what he
is doing violates federal law.” Priester v. City of Riviera Beach, Fla., 208 F.3d
919, 926 (11th Cir. 2000). If there is no precedent that, in factual terms, has staked
out a “bright line,” the defendant is usually entitled to qualified immunity. Hoyt v.
Cooks, 672 F.3d 972, 977 (11th Cir. 2012).
Because excessive-force claims are inherently fact specific, “generally no
bright line exists for identifying when force is excessive; we have therefore
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. Put differently, “[c]oncrete facts are
generally necessary to provide an officer with notice of the hazy border between
excessive and acceptable force.” Fils v. City of Aventura, 647 F.3d 1272, 1291
(11th Cir. 2011) (internal quotation marks omitted).
Identifying a materially similar case is not the only way to show that a right
is clearly established, however. Occasionally, “[a]uthoritative judicial decisions
may establish broad principles of law that are clearly applicable to the conduct at
issue.” Singletary v. Vargas, 804 F.3d 1174, 1184 (11th Cir. 2015) (internal
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quotation marks omitted); see Coffin, 642 F.3d at 1014–15 (stating that a “general
constitutional rule already identified in the decisional law may apply with obvious
clarity to the specific conduct in question”). But “if a broad principle in case law is
to establish clearly the law applicable to a specific set of facts facing a
governmental official, it must do so ‘with obvious clarity’ to the point that every
objectively reasonable government official facing the circumstances would know
that the official’s conduct did violate federal law when the official acted.” Vinyard
v. Wilson, 311 F.3d 1340, 1351 (11th Cir. 2002). In excessive-force cases, the
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.” Priester, 208 F.3d at
926–27 (alteration in original) (internal quotation marks omitted).
Johnson expressly does not rely on a controlling and materially similar case
to show that the detention officers’ conduct clearly violated his right to be free
from excessive force. Instead, he asserts that this Court’s case law clearly
established a broader principle of law that applies with obvious clarity in this case.
As Johnson indicates, we have established that “[p]rison officials step over
the line of constitutionally permissible conduct if they use more force than is
reasonably necessary in an existing situation or if they summarily and maliciously
inflict harm in retaliation for past conduct.” Ort v. White, 813 F.2d 318, 325 (11th
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Cir. 1987). Ort also established that a constitutional violation “occurs . . . where
prison officers continue to employ force or other coercive measures after the
necessity for such coercive action has ceased.” Id. at 327; see also Danley v. Allen,
540 F.3d 1298, 1309 (11th Cir. 2008) (“Once a prisoner has stopped resisting there
is no longer a need for force, so the use of force thereafter is disproportionate to the
need.”); Williams v. Burton, 943 F.2d 1572, 1576 (11th Cir. 1991) (“The basic
legal principle is that once the necessity for the application of force ceases, any
continued use of harmful force can be a violation of the Eighth and Fourteenth
Amendments.”).2
2
Kingsley was decided after the incident giving rise to this case and so is not directly
relevant to the inquiry of whether the law was “clearly established at the time of the
misconduct.” See Carter, 821 F.3d at 1319. For this inquiry we look to our pre-existing law,
which applied the subjective-malice standard abrogated by Kingsley. See id. The district court
concluded that, because the evidence was insufficient to meet the subjective standard (and
therefore to prove a constitutional violation under the prior precedent), the officers could not
have been on notice that their conduct was unlawful.
Appearing to concede that he cannot meet the subjective-malice standard, Johnson
contends that Kingsley “did nothing to change the standard of conduct for detention officers” and
that pre-existing law in this Circuit clearly established an objective standard of conduct that
applies with obvious clarity in this case. See Kingsley v. Hendrickson, 801 F.3d 828, 832–33
(7th Cir. 2015) (holding that “before and after the Supreme Court's decision in [Kingsley], the
standards for the amount of force that can be permissibly employed remain the same”). For
instance, since before the time of this incident, as both parties appear to agree, this Circuit
applied the same objective factors to Fourteenth Amendment excessive-force claims as the
Supreme Court articulated in Kingsley. See Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th Cir.
2007). Likewise, the broad principles of law articulated in Ort, Danley, and Williams, are largely
the same as those articulated in Kingsley. Accordingly, we assume without deciding that
Johnson is correct that an objective standard of conduct was clearly established by pre-existing
case law. Cf. Kingsley, 135 S. Ct. at 2474–75 (explaining that “the use of an objective standard
adequately protects an officer who acts in good faith”). It makes no difference to the ultimate
outcome, however, because Johnson has not shown that the broad principles of law on which he
relies clearly established the objective unreasonableness of the detention officers’ conduct, nor
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Here, the facts construed in Johnson’s favor show that Bailey and Davis
tightly handcuffed a compliant Johnson, causing his hands to go numb, and pulled
him up off the ground in order to transport him to a disciplinary cell for a failure-
to-comply infraction. According to Johnson, “[b]oth of them just grabbed [him],
started bending [his] arms all the way back, bending [his] wrist, . . . [and] started
dragging [him].” This caused Johnson “excruciating pain” because it felt as if the
officers were “dislocating [his] arm from [his] shoulder.” He received medical
treatment for his shoulder upon his release from jail.
Johnson has not shown that every reasonable officer would conclude that the
force used was plainly unlawful “in light of the specific context of the case, not as
a broad general proposition.” Coffin, 642 F.3d at 1013; see Priester, 208 F.3d at
926–27. First, the force used was related to a legitimate institutional objective.
Johnson had been charged with a disciplinary infraction for failure to comply. For
that infraction, as Johnson acknowledges, jail policies instructed that he be
handcuffed and escorted by detention officers during transfer to another part of the
jail. See Bell, 441 U.S. at 547 (stating that courts should defer to the policies and
practices that in the judgment of jail officials are needed to maintain order and
institutional security); Appellant’s Br. at 15 (“[T]he deputies were authorized by
has he shown that the evidence is sufficient to meet the subjective “malicious or sadistic”
standard.
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policy to use force to move Johnson from his cell . . . to disciplinary segregation.”).
To effectuate that transfer, the detention officers, as he admits, were permitted to
use some degree of force or coercive measures. See Appellant’s Br. at 14
(“[S]ome minimal use of force might have been appropriate in response to
Johnson’s alleged disciplinary infraction.”). Nothing in the record indicates that
the officers used force other than during the process of moving him. Accordingly,
the officers did not use force “after the necessity for such coercive action ha[d]
ceased.” See Ort, 813 F.2d at 327.
To the extent Johnson attempts to show that the detention officers acted with
malicious intent, so as to satisfy our old subjective “malicious or sadistic”
standard, we are unpersuaded. Even assuming some of Revels’s comments to
Johnson—threatening to call the “attack squad” and to “jump on [his] ass”—could
be construed as malicious, Revels himself did not use any force against Johnson.
Only Bailey and Davis did. Nor is there evidence that Revels directed Bailey and
Davis to do anything other than transfer Johnson because he was being charged
with a disciplinary infraction for “refus[ing] to sign some medical paperwork.”
Moreover, Bailey’s and Davis’s conduct was broadly consistent with established
prison procedures for transferring detainees for disciplinary infractions. See Sims
v. Mashburn, 25 F.3d 980, 986 (11th Cir. 1994) (“[C]ompliance with established
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prison procedures . . . is evidence of the exercise of ‘good faith’”). Accordingly,
the record does not support a finding that Bailey and Davis acted in bad faith.
Nor has Johnson shown that the amount of force used was clearly excessive
in relation to the need for such force. See Ort, 813 F.2d at 325; Bell, 441 U.S. at
538. Plainly the need for force was low because Johnson was not resisting and, as
the County defendants acknowledge, he “did not pose a physical threat to the
deputies.” And Johnson’s testimony that he was handcuffed tightly, suffered a
shoulder injury, and experienced “excruciating pain” from the detention officers’
conduct certainly suggests that the officers were rougher than they needed to be
under the circumstances. Johnson contends that based on this testimony,
particularly about his injury, a jury could find that the force used was excessive.3
However, we cannot conclude that the detention officers’ “conduct was so
far beyond the hazy border between excessive and acceptable force that [the
officers] had to know [they] w[ere] violating the Constitution even without caselaw
on point.” See Priester, 208 F.3d at 926 (internal quotation marks omitted). As
mentioned above, Johnson does not dispute that some “minimal use of force might
have been appropriate in response to Johnson’s alleged disciplinary infraction,”
despite his lack of resistance. See Fennell v. Gilstrap, 559 F.3d 1212, 1218 (11th
3
Johnson’s speculative inferences from the detention officers’ testimony—that they
denied using force at all because they knew that the force used was excessive—are insufficient to
create a triable issue.
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Cir. 2009) (“[O]ur precedent permits the use of force even when a detainee is not
physically resisting.”). While the extent of injury is relevant to the excessive-force
analysis, permissible levels of force may nevertheless cause some pain and injury.
See Cockrell v. Sparks, 510 F.3d 1307, 1311 (11th Cir. 2007) (open-handed shove
of boisterous inmate was reasonable even though the inmate suffered “relatively
extensive” injuries); cf. Brown v. City of Hunstville, Ala., 608 F.3d 724, 740 (11th
Cir. 2010) (stating, in the related context of Fourth Amendment excessive-force
claims arising out of arrests, that “[f]or even minor offenses, permissible force
includes physical restraint, use of handcuffs, and pushing into walls.”); Rodriguez
v. Farrell, 280 F.3d 1341, 1351–52 (11th Cir. 2002) (“Painful handcuffing, without
more, is not excessive force in cases where the resulting injuries are minimal.”).
Here, it is reasonable to expect that the normal way in which detainees at the
Gwinnett County Jail were transferred for disciplinary infractions—being
handcuffed and walked backward arm in arm with detention officers—would cause
some pain and discomfort to the detainee. And Johnson’s testimony does not
provide any specific details about the deputies’ actions that could distinguish
reasonable coercive measures from an excessive use of force. See Walker v.
Darby, 911 F.2d 1573, 1576–77 (11th Cir. 1990) (party opposing summary
judgment “must set forth specific facts showing that there is a genuine issue for
trial”); cf. Davis v. Williams, 451 F.3d 759, 767–68 (11th Cir. 2006) (holding that
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force used during an arrest was excessive where “there were at least three incidents
of [the officer] intentionally grabbing, pushing, or pulling [the plaintiff’s]
shoulder—after he was handcuffed and after [the plaintiff] informed [the officer]
that he had a sore shoulder—and forcing him to the ground by intentionally
applying stress to the shoulder”). The relatively minor nature of the injury—a
muscle strain accompanied by “excruciating pain”—does not, on this record,
compel a conclusion that the detention officers’ conduct was obviously unlawful.
It bears repeating that “generally no bright line exists for identifying when
force is excessive; we have therefore 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. No
“materially similar case” declares the detention officers’ conduct unconstitutional,
and the broad principles of law on which Johnson relies do not apply with
“obvious clarity” to the specific situation facing the detention officers. See
Vinyard, 311 F.3d at 1351.
Because Johnson has not shown that the detention officers violated a clearly
established right in the specific context of this case, we affirm the grant of
qualified immunity to Revels, Bailey, and Davis.
B. Supervisory Liability of the Sheriff under § 1983
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Next, Johnson contends that Sheriff Conway is liable as a supervisor
because a reasonable jury could find a causal connection between the use of
excessive force against him and the jail policy allowing detention officers to
discipline detainees for refusing to sign a medical form that they have a right to
refuse to sign.
Supervisors cannot be held liable under § 1983 on the basis of vicarious
liability or respondeat superior. Keith v. DeKalb Cty., Ga., 749 F.3d 1034, 1047
(11th Cir. 2014). “Instead, to hold a supervisor liable a plaintiff must show that the
supervisor either directly participated in the unconstitutional conduct or that a
causal connection exists between the supervisor’s actions and the alleged
constitutional violation.” Id. at 1047–48. A plaintiff may prove such a causal
connection in several ways, including, as Johnson claims here, when the
supervisor’s policy or custom results in deliberate indifference to constitutional
rights. Id. at 1048. The standard for holding a supervisor individually liable for
the actions of a subordinate is “extremely rigorous.” Cottone v. Jenne, 326 F.3d
1352, 1360 (11th Cir. 2003).
To establish deliberate indifference of a supervisor, the plaintiff must show
that the supervisor disregarded a known, substantial risk of harm to an inmate. See
Keith, 749 F.3d at 1047–48. Johnson claims that the Sheriff’s policies created a
risk that excessive force would be used in circumstances where no discipline
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should even have been imposed. But the jail policies themselves do not authorize
discipline for refusing to consent to medical treatment or authorize force, let alone
excessive force, when a detainee exercises the right to refuse medical treatment.
Moreover, Johnson has produced no evidence establishing Sheriff Conway’s
subjective knowledge either that the policies permitted discipline for exercising a
right or that such discipline would be carried out with excessive force, in violation
of the Use of Force policy. See id. at 1049. As far as the evidence in this case
shows, this was an isolated and unusual incident where a detainee refused to
provide written consent after medical staff had administered a necessary test for
tuberculosis as part of the jail’s intake procedures.
Because Johnson has not shown that the Sheriff was subjectively aware of a
substantial risk that excessive force would be used against inmates simply for
exercising their right to refuse medical treatment, he has not established that the
Sheriff was deliberately indifferent to his constitutional rights.4 Accordingly,
Sheriff Conway is not liable as a supervisor under § 1983, and we affirm the grant
of summary judgment in his favor.
4
We note, however, that the jail’s policies may now be constitutionally suspect in one
respect. In Jacoby v. Baldwin County, 835 F.3d 1338 (11th Cir. 2016), we held that pretrial
detainees may not be placed in disciplinary segregation without first having been afforded a due-
process hearing. Id. at 1347–49. Thus, Johnson’s immediate transfer to solitary confinement
after being charged with a disciplinary infraction appears to contravene the holding of Jacoby.
Nevertheless, Johnson does not raise a due-process claim in this appeal, and, as Jacoby makes
clear, the law in this regard was not clearly established at the time of the incident. So, even if he
had raised such a claim, the Sheriff (along with the detention officers acting pursuant to that
policy), would still be entitled to qualified immunity.
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C. Battery under Georgia State Law
Finally, Johnson argues that reasonable jurors could find that Revels, Bailey,
and Davis committed a battery against him. The defendants respond that they are
entitled to official immunity under Georgia state law.
Georgia law provides state officers and employees with “official immunity,”
which means that they are generally “immune from individual liability for
discretionary acts undertaken in the course of their duties and performed without
willfulness, malice, or corruption.” Reed v. DeKalb Cty., 589 S.E.2d 584, 587 (Ga.
Ct. App. 2003). An arresting officer is not liable unless he “act[ed] with actual
malice or with actual intent to cause injury in the performance of [his] official
functions.” Ga. Const. Art. 1, § 2, ¶ IX(d); Reed, 589 S.E.2d at 588. “Actual
malice” means “a deliberate intention to do wrong.” Merrow v. Hawkins, 467
S.E.2d 336, 337 (Ga. 1996).
Here, the detention officers are entitled to official immunity. As discussed
above, Bailey and Davis were permitted to use some degree of physical coercion
during the process of transporting Johnson for a disciplinary violation, and the
record does not support a finding that these officers acted with a deliberate
intention to do wrong or cause harm. Moreover, Johnson’s testimony reflects that
Revels did not use any force against him, so his state of mind is largely irrelevant;
but even if it were relevant, Revels’s comments reflect “frustration, irritation, and
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possibly even anger,” which are generally “not sufficient to penetrate official
immunity.” Selvy v. Morrison, 665 S.E.2d 702, 706 (Ga. Ct. App. 2008).
Accordingly, we affirm the district court’s grant of summary judgment on this
claim.
IV. Claims against Medical Defendants
Finally, Johnson asserts that the district court at trial erroneously instructed
the jury that expert testimony was necessary to establish the element of causation
for his medical-negligence claim that Nurse Fajardo administered the PPD test for
tuberculosis without his consent. Because the “element of causation turned solely
on a simple fact question of consent,” Johnson argues, there was no need for expert
testimony and the jury may have been misled by the instruction.
Rule 51, Fed. R. Civ. P., governs objections to jury instructions and
preserving a claim of error for appeal. For an objection to be timely under Rule
51, it must be made “before the instructions and arguments are delivered.” See
Fed. R. Civ. P. 51(b)(2) & (c)(2)(A). “We interpret Rule 51 strictly, and require a
party to object to a jury instruction or jury verdict form prior to jury deliberations
in order to preserve the issue on appeal.” Farley v. Nationwide Mut. Ins. Co., 197
F.3d 1322, 1329 (11th Cir. 1999) (emphasis in original). That requirement ensures
that the trial judge has an opportunity to correct any error before a jury has begun
its deliberations. Id. “A party who fails to raise an objection to a . . . jury
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instruction prior to jury deliberations waives its right to raise the issue on appeal,”
unless the appellant can satisfy plain-error review. Id.
Reversal for plain error in this context “will occur only in exceptional cases
where the error is so fundamental as to result in a miscarriage of justice.” Id.
(internal quotation marks omitted) (emphasis omitted). The appellant must prove
that the challenge instruction was an incorrect statement of law and that it likely
affected the outcome of the proceedings. See id. at 1329–30. Moreover, “[w]e
repeatedly have held that we will not find that a particular instruction constitutes
plain error if the objecting party invited the alleged error by requesting the
substance of the instruction given.” Id. at 1331 (internal quotation marks omitted)
(alteration adopted).
Plain-error review applies because Johnson did not timely object to the
challenged instruction before the beginning of jury deliberations. See id. at 1329.
And this is not an “exceptional case” in which “the error is so fundamental as to
result in a miscarriage of justice.” Id. For starters, Johnson’s counsel appears to
have jointly submitted the negligence instruction, and he expressly conceded that
the instruction was an accurate statement of the law. Nor, upon first raising the
issue, did counsel ask the court to take any corrective action. Such actions
arguably amount to invited error.
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More importantly, we agree with the medical defendants that the record
gives no indication that the instruction had any prejudicial effect at trial. The
verdict in favor of the medical defendants on the battery claim required the jury to
find that Fajardo had not administered the test without Johnson’s consent. See
Prince v. Esposito, 628 S.E.2d 601, 603 (Ga. Ct. App. 2006) (“An action for
battery arises in the medical context when a medical professional makes
unauthorized contact with a patient during examination, treatment, or surgery. A
patient who consents to a medical touching, however, cannot sustain a battery
claim.”) (footnotes and internal quotation marks omitted). That finding would
likewise preclude Johnson from prevailing on his claim for medical negligence
based on a lack of consent. Accordingly, Johnson has not established plain error
based on an erroneous jury instruction.
V. Conclusion
For the reasons stated, we affirm the grant of summary judgment to the
County defendants (Revels, Bailey, Davis, and Sheriff Conway). We likewise
affirm the judgment in favor of the medical defendants (Fajardo and Corizon).
AFFIRMED.
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