No. 11-

IN THE

Supreme Court of the United States

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

A(800) 274-3321 • (800) 359-6859

MARTHA HOYT, Individually, and as Administrator of the Estate of James Christopher Allen,

JAMES ALLEN,

Petitioners,

v.

BERNARD COOKS, In his individual capacity,RANDY T. HARKLEROAD, In his individual capacity,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

241572

ALBERT WAN

ATTORNEY AT LAW

1201 Peachtree Street NE400 Colony Square, Suite 200Atlanta, Georgia 30361(404) 872-7760albert@albertwanlaw.com

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QUESTION PRESENTED

Whether any reasonable law enforcement official would have understood that it was excessive force in violation of the Fourth Amendment to repeatedly strike a mentally incapacitated individual with a Taser eighteen times for the sole purpose of handcuffi ng him where this individual was compliant, lying prone on the ground and later died while being transported to the jail as a direct result of the Taser applications.

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PARTIES TO THE PROCEEDINGS BELOW

Martha Hoyt and James Allen are the petitioners. Ms. Hoyt and Mr. Allen are the parents of the decedent, James Christopher Allen, and brought suit individually and on behalf of the estate of James Christopher Allen in the original action. They were the appellees at the United States Court of Appeals for the Eleventh Circuit.

Bernard Cooks and Randy Harkerload are the respondents. They were two of the defendants in the original action, and the appellants before the Court of Appeals for the Eleventh Circuit.

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TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDINGS BELOW. . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . v

TABLE OF CITED AUTHORITIES . . . . . . . . . . . vi

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . 3

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

PERTINENT CONSTITUTIONAL AND STATUTORY PROVISIONS . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . 4

REASONS FOR GRANTING CERTIORARI. . . . 9

I. The Eleventh Circuit’s Decision Confl icts Directly With This Court’s Decision in Hope v. Pelzer And Represents Yet Another Example of The Eleventh Circuit’s Consistent Unwill ingness to Follow

The Principles Of Hope . . . . . . . . . . . . . . . . . 9

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Table of Contents

Page

II. It Is Obviously Clear to Any Reasonable Offi cer That Tasing A Mentally Incapacitated But Compliant Individual Eighteen Times

Violates The Fourth Amendment . . . . . . . . . 14

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

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TABLE OF APPENDICES

Page

A PPENDI X A — DECISION OF THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT, FILED

FEBRUARY 27, 2012 . . . . . . . . . . . . . . . . . . . . . . . 1a

A P P E N DI X B — O R D E R O F T H E UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA, WAYCROSS DIVISION, FILED

JANUARY 26, 2011 . . . . . . . . . . . . . . . . . . . . . . . . 19a

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TABLE OF CITED AUTHORITIES

Page

CASES

Anderson v. Creighton, 483 U.S. 635 (1987) . . . . . . . . . . . . . . . . . . . . . . . . 11, 15

Brooks v. Daman, No. 11-1045 (conditional cross-petition for cert. fi led Feb. 21, 2012). . . . . . . . . . . . . . . . . . . . . . . . . . 5

Bryan v. MacPherson, 630 F.3d 805 (9th Cir. 2010) . . . . . . . . . . . . . . . . . . 7

Casey v. City of Federal Heights, 509 F.3d 1278 (10th Cir. 2007) . . . . . . . . . . . . . . . . 16

Coffi n v. Brandau, 642 F.3d 999 (11th Cir. 2011) . . . . . . . . . . . . . . . . . 12

Cyrus v. Town of Mukwonago, 624 F.3d 856 (7th Cir. 2010) . . . . . . . . . . . . . . . . . . 17

Drummond ex rel. Drummond v. City of Anaheim,

343 F.3d 1052 (9th Cir. 2003) . . . . . . . . . . . . . . . . . 17

Graham v. Connor, 490 U.S. 386 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . 16

Harlow v. Fitzgerald, 457 U.S. 800 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . 8

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Cited Authorities

Page

Hickey v. Reeder, 12 F.3d 754 (8th Cir. 1993) . . . . . . . . . . . . . . . . . . . 16

Holloman ex rel. Holloman v. Harland, 370 F.3d 1252 (11th Cir. 2004) . . . . . . . . . . . . . . . . 14

Hope v. Pelzer, 536 U.S. 730 (2002) . . . . . . . . . . . . . . . . . . . . . . passim

Hoyt v. Cooks, 672 F.3d 972 (11th Cir. 2012) . . . . . . . . . . . . . . . . . 3

Hoyt v. Cooks, No. CV 509-026, 2011 U.S. Dist. LEXIS 7330 (S.D. Ga. Jan. 26, 2011) . . . . . . . . . . . . . . . . . . . . . . 3

Jennings v. Jones, 499 F.3d 2 (1st Cir. 2007) . . . . . . . . . . . . . . . . . . . . 17

Kyllo v. United States, 533 U.S. 27 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Mattos v. Agarano, 661 F.3d 433 (9th Cir. 2011) (en banc) . . . . . . . . . . 7

Mattos v. Agarano, No. 11-1165 (conditional cross-petition for cert. fi led Mar. 22, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . 5

Oliver v. Fiorino, 586 F.3d 898 (11th Cir. 2009) . . . . . . . . . . . . . . . . 10, 11

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Cited Authorities

Page

Priester v. City of Riviera Beach, 208 F.3d 919 (11th Cir. 2000) . . . . . . . . . . . . . . . . . 10

Smith v. Mattox, 127 F.3d 1416 (11th Cir. 1997) . . . . . . . . . . . . . . . . 10

Thomas v. Roberts, 323 F.3d 950 (11th Cir. 2003) . . . . . . . . . . . . . . . . . 13

United States v. Lanier, 520 U.S. 259 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . 9, 15

Vaughn v. Cox, 316 F.3d 1210 (11th Cir. 2003), vacated and

substituted on sua sponte reh’g by 343 F.3d 1323 (11th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14

Williams v. Consolidated City of Jacksonville, 381 F.3d 1298 (11th Cir. 2004) . . . . . . . . . . . . . . . 11, 12

Willingham v. Loughnan, 321 F.3d 1299 (11th Cir. 2003) . . . . . . . . . . . . . . . 13, 14

CONSTITUTION AND STATUTES

U.S. Const. amend IV . . . . . . . . . . . . . . . . . . . . . . passim

28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4

ix

Cited Authorities

Page

OTHER AUTHORITIES

Taser Int’l, General Faqs, http://www.taser.com/ research/Pages/FAQGeneral.aspx . . . . . . . . . . . . 7

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INTRODUCTION

James Christopher Allen died in May 2007 after being repeatedly struck by two law enforcement offi cers armed with Tasers. During Allen’s encounter with the offi cers, Bernard Cooks, a sheriff’s deputy, and, Randy Harkerload, a police offi cer, Allen was lying prone on the ground and complied with the offi cers’ commands. Allen, however, also exhibited clear signs of delusional and hallucinatory behavior, and according to the offi cers, refused to place his left arm behind his back to be handcuffed. That is when the offi cers decided to “tase” Allen. The offi cers together tased Allen a total of eighteen times by shooting Allen with probes (in his back) and also stabbing Allen with the Taser itself (in his legs and back). Only after unleashing this full arsenal of deadly force did the offi cers realize that it had no effect on Allen. Cooks then forced Allen’s left arm behind his back and handcuffed him. Allen died in the back of a patrol car while being transported to the jail.

The unlawfulness in repeatedly tasing a mentally unstable individual like Allen should have been clear to the offi cers from the outset. Allen had been the one who called 911 for help, telling the 911 operator, among other things, that demons were trying to get him. Cooks, the fi rst offi cer to respond to Allen’s call, knew from prior encounters that Allen had a history of mental illness and substance abuse, symptoms of which were on full display before Cooks and then Harkerload deployed their Tasers on Allen. Yet neither Cooks nor Harkerload took any action to request emergency medical assistance for Allen, and instead decided to subdue a compliant and non-threatening Allen with their Tasers.

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The district court held that both Cooks and Harkerload used unconstitutionally excessive force in their “repeated tasering” of Allen and denied the officers qualified immunity as a matter of “obvious clarity.” The Eleventh Circuit reversed, however, and awarded the officers qualified immunity because “the illegality of [their] behavior was not clearly established at the time.” In so doing, the Eleventh Circuit continued to apply the “rigid gloss” of material similarity that was emphatically rejected by this Court in Hope v. Pelzer, 536 U.S. 730, 739 (2002), itself an appeal originating from the Eleventh Circuit. Thus, while acknowledging its duty to go beyond caselaw to determine whether the officers violated clearly established law in cases like the one here where “no precedent … has staked out a bright line”, the court nonetheless reversed the denial of qualifi ed immunity, relying exclusively but incorrectly on the factual disparities between the present case and another Taser excessive force case, decided two years after the incident at issue. In other words, having recognized the necessity of examining the merits of this case on their own without reference to factually similar cases (because none existed), the court did the exact opposite. Such an approach to qualifi ed immunity analysis is inappropriate in the post-Hope era and fails to address the question which this Court held in Hope should be the focus of every qualifi ed immunity analysis; namely, whether the officers had “fair warning” that their conduct was unconstitutional. Because the Eleventh Circuit’s decision confl icts with the precedent of this Court and other Courts of Appeals, a grant of certiorari is warranted.

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OPINIONS BELOW

The Court of Appeals opinion that the petitioner asks this Court to review is Hoyt v. Cooks, 672 F.3d 972 (11th Cir. 2012). It is reprinted in the Appendix to the Petition (“App.”) at 1a-18a. The district court’s order on the Respondents’ motion for summary judgment is Hoyt v. Cooks, No. CV 509-026, 2011 U.S. Dist. LEXIS 7330 (S.D. Ga. Jan. 26, 2011) and is reprinted at App. 19a-51a.

JURISDICTION

The Eleventh Circuit entered judgment on February 27, 2012 in favor of Respondents. The district court had granted in part and denied in part Respondent’s motion for summary judgment. The Eleventh Circuit reversed the decision of the district court insofar as it denied Respondents’ motion for summary judgment, holding, in relevant part, that Respondents were entitled to qualifi ed immunity on the federal Fourth Amendment claim asserted against them under 42 U.S.C. § 1983 by Petitioners. Petitioners did not request a rehearing from the Eleventh Circuit. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

PERTINENT CONSTITUTIONAL AND STATUTORY PROVISIONS

There are two provisions at issue in this case:

(1) The Fourth Amendment to the United States Constitution, which provides in pertinent part, “The right of the people to be secure in their persons … against

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unreasonable searches and seizures, shall not be violated ….” U.S. Const. amend. IV, and

(2) Section 1983 of Title 42 of the United States Code, which provides in pertinent part, “Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State … subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress ….” 42 U.S.C. § 1983.

STATEMENT OF THE CASE

Tasers have now become a standard tool in the arsenals of law enforcement personnel. They are used ostensibly to subdue and incapacitate uncooperative or threatening individuals, most often to effectuate an arrest. However, the capacity of a Taser to infl ict debilitating pain and sometimes cause fatal physical harm, requires that its use be subject to the Fourth Amendment’s framework governing the use of force by government offi cials. Based on the Eleventh Circuit’s ruling, offi cers who decide to use their Tasers against civilians can do so now with complete immunity from liability as long they deploy their Tasers under novel factual circumstances or in a manner that has not previously been deemed unlawful by a court. Such a ruling has dangerous and potentially grievous implications for the many civilians who routinely encounter law enforcement with Tasers.1

1. Currently pending before the Court are cross-petitions for certiorari in two cases, consolidated by the Ninth Circuit, in

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At approximately 2 a.m. early Wednesday morning James Christopher Allen (“Allen”) called 911 several times in a panic. He told the 911 operator that “they were shooting him” and “demons were trying to get him”. Allen didn’t elaborate and hung up almost as soon as he had placed the 911 calls. The 911 operator relayed Allen’s statements to Deputy Bernard Cooks and dispatched Cooks to Allen’s residence. Cooks, a deputy sheriff with the Bacon County Sheriff ’s Office, knew Allen from prior encounters. Cooks knew that Allen had a history of mental illness and substance abuse. In fact, Cooks had responded to Allen’s residence on a number of prior occasions after Allen had called 911 in the early morning hours complaining of demons and the like. Cooks later told an agent with the Georgia Bureau of Investigation that he did not recall having ever arrested Allen in responding to these prior calls.

Cooks arrived at Allen’s home at approximately 2:16 a.m., pulling into Allen driveway in his patrol car. Soon after Cooks arrived Allen came out the front door and began yelling that demons were trying to get him. According to Cooks, Allen then ran towards the patrol car and inserted his head and upper torso through Cook’s driver’s side window which Cooks had left open. Cooks asked Allen what he was doing and tried to push Allen out of his car. He did so successfully, Cooks later explained, by driving the car forward, which caused Allen to fall off the car and on to the ground. With Allen lying on the ground,

which an en banc Court of Appeals granted qualifi ed immunity to offi cers who had tased civilians based on what the court found was an absence of clearly established law. These cases are Brooks v. Daman, No. 11-1045 (conditional cross-petition for cert. fi led Feb. 21, 2012) and Mattos v. Agarano, No. 11-1165 (conditional cross-petition for cert. fi led Mar. 22, 2012).

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Cooks exited his car and again asked Allen what he was doing and how he, Cooks, could help Allen. Allen, however, continued yelling about demons and how the demons were trying to get him. Allen told Cooks that Cooks had to “kill these demons.” Cooks instructed Allen to calm down.

At some point during this encounter, Allen started crawling towards Cooks. Cooks began to back away from Allen toward his patrol car. Once inside his car, Cooks called for back-up. Cooks placed this call at approximately 2:17 a.m. Allen continued to crawl towards Cooks while Cooks waited for back-up from inside his patrol car. In response, Cooks unholstered his Taser and instructed Allen to keep calm, cease moving and remain lying on the ground. Allen complied with Cooks’ directives.

Offi cer Randy Harkerload with the City of Alma Police Department arrived Allen’s home at approximately 2:27 a.m. in response to Cooks’ request for back-up. At this point, Cooks holstered his Taser and told Harkerload that Allen had to be handcuffed and placed under arrest. Cooks told Harkerload that he would effectuate the arrest but asked Harkerload to cover him. Cooks then instructed Allen to place his arms behind his back. Allen complied by placing his right arm behind his back but not his left arm. Cooks instructed Allen several times to place his left arm behind his back but Allen did not do so. Instead, Allen tried to get up off the ground. Cooks then unholstered his Taser and instructed Allen to lay back down and to again place his left arm behind his back. Allen complied by lying back down on the ground but only placed one arm behind his back. Cooks then shot Allen in his lower back with his

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Taser in “dart mode”.2 Because Allen still only had his right arm behind his back, Cooks administered a second cycle with his Taser as the Taser probes were still attached to Allen’s back. Allen remained lying on the ground, however, with only one arm behind his back. As Allen was still lying on the ground, Harkerload successfully cuffed Allen’s right arm but was unable to do the same with Allen’s left arm. Cooks then used his Taser again on Allen, this time in “drive stun” mode, as did Harkerload, who was armed with a Taser as well.3 As both Cooks and Harkerload continued in their efforts to place Allen’s left

2. When used in dart mode, as the Ninth Circuit has explained, the Taser:

[U]tilizes compressed nitrogen to project two small probes up to various ranges at a speed of over 160 feet per second. These probes are connected to the TASER device by insulated wires. An electrical signal is transmitted through the wires to where the probes make contact with the body or clothing, resulting in an immediate loss of the person’s neuromuscular control and the ability to perform coordinated action for the duration of the impulse.

Bryan v. MacPherson, 630 F.3d 805, 812-13 (9th Cir. 2010) (Wardlaw, J., concurring in the denial of rehearing en banc) (quoting Taser Int’l, General Faqs, http://www.taser.com/research/Pages/FAQGeneral.aspx).

3. “In this mode, the taser delivers an electric shock to the victim, but it does not cause an override of the victim’s central nervous system as it does in dart-mode.” Mattos v. Agarano, 661 F.3d 433, 443 (9th Cir. 2011) (en banc). The individuals in Mattos upon whom Tasers were applied in drive stun mode described the drive stun tases as being “extremely painful.” Id.

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arm in handcuffs, they struck Allen several more times with their Tasers. The offi cers together tased Allen a total of eighteen times.4 When the offi cers realized that their Tasers did not have the desired effect on Allen, Cooks grabbed Allen’s left arm and forcibly secured it to the remaining cuff.

Cooks placed the handcuffed Allen in the back of his patrol car and drove to the jail with Harkerload trailing Cooks in his own car. The time was approximately 2:41 a.m. Cooks arrived the jail at 2:50 a.m. and found Allen unresponsive in the back of his patrol car. At 3:25 a.m. Allen was pronounced dead. An autopsy conducted of Allen opined that he “died as a result of cocaine-induced excited delirium in a background of coronary atherosclerotic disease.” A forensic pathologist hired by Petitioner as an expert witness later found that “the repeated tazing [sic] of [Allen] caused his death by triggering off a fatal coronary arrhythmia.”

4. This fi gure comes from data downloaded directly from the two Tasers used by Respondents against Allen. Respondents, of course, dispute that they tased Allen eighteen times, claiming instead that they tased Allen at most six times. Yet the district court noted that the Respondents “could not offer any explanation of why the download data showed numbers higher than” that claimed by Respondents. App. 21a-22a. Real factual dispute or not, because this case is before this Court on Respondents’ summary judgment motion, this Court “must look at the record in the light most favorable to the party opposing the motion, drawing all inferences most favorable to that party.” Harlow v. Fitzgerald, 457 U.S. 800, 816 n.26 (1982) (citation omitted).

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REASONS FOR GRANTING CERTIORARI

I. The Eleventh Circuit’s Decision Confl icts Directly With This Court’s Decision in Hope v. Pelzer And Represents Yet Another Example of The Eleventh Circuit’s Consistent Unwillingness to Follow The Principles Of Hope.

In the landmark case of Hope v. Pelzer, 536 U.S. 730, 741 (2002), this Court re-affirmed the principle “that offi cials can still be on notice that their conduct violates established law even in novel circumstances.” Id. (citing United States v. Lanier, 520 U.S. 259 (1997)). In so doing, the Hope Court rejected what had been the Eleventh Circuit’s position that no violation of clearly established law can be found in the absence of cases with facts “materially similar” to those in the case at hand. See id. 736, 741. This “rigid gloss on the qualifi ed immunity standard”, the Hope Court explained, was “not consistent with … cases [from this Court].” Id. at 739. Instead, this Court emphasized in Hope that “the salient question that the [Eleventh Circuit] ought to have asked is whether the state of the law [at the time of the incident] gave [public offi cials] fair warning that their alleged treatment of [the plaintiff] was unconstitutional.” Id. at 741 (emphasis added).

The Eleventh Circuit ignored Hope’s central premise when it determined that the Respondents in this case did not violate Allen’s clearly established rights as a matter of “obvious clarity” where the record is undisputed that Respondents repeatedly struck Allen with their Tasers. To be sure, the Court of Appeals, citing Eleventh Circuit, pre-Hope law, acknowledged “that a right can be clearly established even in the absence of caselaw” where “the

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conduct [at issue] must have been ‘so far beyond the border between excessive and acceptable force that [the offi cer] had to know he was violating the Constitution.’ ” App. 10a-11a (citing Priester v. City of Riviera Beach, 208 F.3d 919, 926 (11th Cir. 2000) and Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir. 1997)). In its ensuing qualifi ed immunity analysis, however, the court below did not look to the “state of the law” at the time of the incident – May 9, 2007 – as it was required to do under Hope. Instead, the court relied exclusively on a case decided two years after the incident, Oliver v. Fiorino, 586 F.3d 898 (11th Cir. 2009). The court explained its reasons for doing so in a footnote:

Although the Oliver opinion was issued after the incident here, it is relevant because it held that the conduct of the officers there rose to the level of a constitutional violation as a matter of obvious clarity. Thus, if the conduct of Cooks and Harkerload were identical to, or substantially similar to, the actions condemned in Oliver, then what was a matter of obvious clarity two years later in Oliver might indicate that such similar actions would also violate clearly established rights two years earlier.

App. 11a n.6. The court then concluded that because “the facts of Oliver are so different from the instant facts … the obvious clarity holding in Oliver falls short of indicating obvious clarity in this case.” App. 15a.

The Eleventh Circuit’s reliance on Oliver to award Respondents qualifi ed immunity in this case represents a direct abrogation of this Court’s holding in Hope for

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several reasons. First, the Eleventh Circuit looked to precedent, Oliver, supra, that post-dated the incident at issue here. As a result, nothing about Oliver could have given the Respondents in this case “fair warning” that their conduct was unconstitutional at the time of the incident, the “salient question” that must be answered in any qualifi ed immunity analysis. Hope, 536 U.S. at 741. See also Anderson v. Creighton, 483 U.S. 635, 640 (1987) (“This is not to say that an offi cial action is protected by qualifi ed immunity unless the very action in question has previously been held unlawful, but it is to say that in light of pre-existing law the unlawfulness must be apparent”) (citations omitted and emphasis added).5 Second, and more troubling, the Eleventh Circuit’s ruling in this case represents just another example of what this Court criticized and rejected in Hope as the Eleventh Circuit’s “rigid over reliance on factual similarity.” Id. at 742. This rigidity is not exclusive to the court’s treatment of the case at bar and permeates Eleventh Circuit qualifi ed immunity jurisprudence as a whole, leading Judge Tjofl at to openly observe that “[o]ur post-Hope decisions demonstrate that we have not yet achieved a consensus on what the elusive phrase ‘clearly established’ means.” Williams v. Consolidated City of Jacksonville, 381 F.3d 1298, 1306 (11th Cir. 2004) (Tjofl at, J., dissenting from the denial of rehearing en banc).

5. The more obvious point, but one falling outside the scope of the present discussion on qualifi ed immunity, is that the Court of Appeals relied on Oliver to reach a holding – i.e., that Respondents did not violate clearly established law as a matter of obvious clarity – which simply did not exist in the Oliver decision; in fact, the exact opposite is true, as the court in Oliver held that the offi cers in that case did violate the clearly established rights of the plaintiff as a matter of “obvious clarity.” See 586 F.3d at 907-08.

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The recent en banc decision by the Eleventh Circuit in Coffi n v. Brandau, 642 F.3d 999 (11th Cir. 2011) (en banc) is representative of the post-Hope elusiveness that Judge Tjofl at referred to in Williams. Brandau concerned the question of whether the warrantless entry of a sheriff’s deputy into a private residence garage constituted an unlawful search and seizure. The en banc majority said yes, such an entry did violate the homeowner’s Fourth Amendment rights, but awarded the offi cers qualifi ed immunity because they “did not violate clearly established Fourth Amendment law.” Id. at 1013. Key to the majority’s qualifi ed immunity analysis, and of particular relevance here, was its interpretation of a trio of Eleventh Circuit decisions involving allegedly unlawful police intrusions into garages as well as this Court’s decision in Kyllo v. United States, 533 U.S. 27 (2001). Brandau, 642 F.3d at 1010-11, 1013-14. Judge Barkett, writing for Judges Hull and Martin, concurred in the majority’s fi nding of a constitutional violation but dissented as to its award of qualifi ed immunity. Id. at 1018-30. In so doing, Judge Barkett criticized the majority for its “hyper-technical and counterfactual reading” of the four cases at issue, conduct which, in Judge Barkett’s view, “contravene[d] the standard set forth in Hope v. Pelzer for determining whether binding precedents clearly established a constitutional right.” Id. at 1027-28. Signifi cantly, Judge Barkett noted that “the applicable binding precedents are even more factually similar to the deputies’ conduct than the precedents in Hope were to the prison offi cials’ conduct, and thus gave the deputies fair warning that their conduct violated the [plaintiffs’] constitutional rights.” Id. at 1028. But in fi nding otherwise, the dissent went on to conclude, “the majority does exactly what the Supreme Court chastised this court for doing in Hope.” Id.

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Indeed, it is debatable whether the Eleventh Circuit ever received the message this Court sought to send it through the Court’s decision in Hope. After deciding Hope, this Court remanded several cases to the Eleventh Circuit for reconsideration in light of Hope, including Thomas v. Roberts, 323 F.3d 950 (11th Cir. 2003), Willingham v. Loughnan, 321 F.3d 1299 (11th Cir. 2003), and Vaughn v. Cox, 316 F.3d 1210 (11th Cir. 2003), vacated and substituted on sua sponte reh’g by 343 F.3d 1323 (11th Cir. 2003). With the exception of the panel in Vaughn, however, none of the panels in the other cases reached a different conclusion upon remand – that is, one in favor of the plaintiff – despite openly acknowledging the directive in Hope to the Eleventh Circuit that it “be less rigid when evaluating caselaw to determine whether a public offi cial had fair warning that his actions would be unlawful,” Thomas, 323 F.3d at 956; Willingham, 321 F.3d at 1304 (“In accord with Hope, we have considered again whether, in light of general constitutional rules on deadly force that had been already been identifi ed in the decisional law, this use of deadly force would have been seen as plainly unlawful by all objectively reasonable offi cers; and the answer is ‘no’ …”). While the panel in Vaughn ultimately denied the defendant qualifi ed immunity, it did so only on a sua sponte rehearing after having already ruled against the plaintiff in the wake of Hope, 316 F.3d at 1213 (reinstating prior decision and faulting the plaintiff for failing “to offer analogous, though not necessarily factually identical, Fourth Amendment cases to show that the law was clearly established at the time of the shooting” which Hope had “invite[d]” him to do), and drawing a sharp dissent from Ninth Circuit Judge Noonan, sitting by designation in Vaughn, in which he accused the majority of “preempt[ing] the jury and resolv[ing] all material

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facts in dispute against Vaughn,” id. at 1215 (Noonan, J., dissenting) (additional citations omitted). See generally Vaughn, 343 F.3d at 1323. One panel even went so far as to observe that “[t]he Supreme Court decision in Hope v. Pelzer … did not change the preexisting law of the Eleventh Circuit much.” Willingham, 321 F.3d at 1301. But see Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1278 (11th Cir. 2004) (Tjofl at, J.) (observing that “Hope seems to have abrogated many of the … standards in Wood [v. City of Lakeland, 203 F.3d 1288 (11th Cir. 2000)]” including its holding that ‘[f]or qualifi ed immunity to be surrendered, pre-exiting law must dictate, that is, truly compel (not just suggest or allow or raise a question about), the conclusion for every like-situated, reasonable government agent that what defendant is doing violates federal law in the circumstances’ ”).

Just as this Court granted certiorari in Hope “to determine whether the [Eleventh Circuit’s] qualified immunity holding comports with [this Court’s] decision in United State v. Lanier”, 536 U.S. at 733 (citation omitted), this Court should do so again here to determine whether the lower court’s holding in this case comports with this Court’s decision in Hope v. Pelzer.

II. It Is Obviously Clear to Any Reasonable Offi cer That Tasing A Mentally Incapacitated But Compliant Individual Eighteen Times Violates The Fourth Amendment.

Had the Eleventh Circuit followed Hope and untethered itself from its rigid, fact-specifi c approach to qualified immunity, it would have concluded that Respondents violated clearly established law as a matter

15

of “obvious clarity.” Put another way, having found that “no precedent … has staked out a bright line” in this case, App. 9a, thus entering “obvious clarity” territory, the court below should not then have resorted to prior caselaw to disprove Petitioner’s argument that Respondents violated clearly established law as a matter of obvious clarity. Instead, the court should have answered the obvious clarity question by viewing the facts in the light most favorable to Petitioner under the expanded lens of the Fourth Amendment’s general prohibition on excessive force. See Lanier, 520 U.S. at 271 (“”[A] general constitutional rule already identifi ed in the decisional law may apply with obvious clarity to the specifi c conduct in question, even though ‘the very action in question has [not] previously been held unlawful’ ”) (quoting Anderson, 483 U.S. at 640). Had the Court of Appeals done so, it would have found the following:

• Respondents together shot (dart mode) and stabbed (dry stun mode) Allen with their Taser guns eighteen times over a period of at most sixteen minutes. App. 21a-22a.

• During Allen’s entire encounter with Respondents, Allen lay prone on the ground and submitted to the authority of Respondents. App. 35a-36a.

• Respondent Cooks knew from prior encounters with Allen that Allen had a history of mental illness and substance abuse. App. 7a.

• Allen exhibited clear signs of mental impairment from the very outset of his encounter with Respondents. App. 20a.

16

• Allen’s only act of resistance vis-à-vis Respondents consisted of his refusal or, more likely inability (because of his then psychological state and having been immobilized by the taser applications), to place his left arm behind his back. App. 36a-37a.

• Allen did not try to fl ee from Respondents nor was he physically aggressive toward them. App. 40a.

• Allen died shortly after and as a direct result of his being subjected to deadly force by Respondents in the form of eighteen taser applications. App. 23a, 37a.

Even in the absence of case law, this stark factual backdrop alone should have compelled the Court of Appeals to fi nd as a matter of “obvious clarity” that any reasonable offi cer in the position of Respondents would have known that repeatedly tasing a mentally incapacitated but compliant individual like Allen was unlawful. See Hickey v. Reeder, 12 F.3d 754, 757 (8th Cir. 1993) (“[A] stun gun infl icts a painful and frightening blow, which temporarily paralyzes the large muscles of the body, rendering the victim helpless. This is exactly the sort of torment without marks … which, if infl icted without legitimate reason, supports the Eighth Amendment’s objective component”) (emphasis added). Other circuits have employed the same approach to fi nd violations of clearly established law in “obvious clarity” cases. See, e.g., Casey v. City of Federal Heights, 509 F.3d 1278, 1285 (10th Cir. 2007) (“[W]e need not have decided a case involving similar facts to say that no reasonable offi cer could believe that he was entitled to behave as Offi cer Sweet allegedly did. Graham [v. Connor, 490 U.S. 386, 396 (1989)] establishes that force is least justifi ed against nonviolent misdemeanants who

17

do not fl ee or actively resist arrest”); Jennings v. Jones, 499 F.3d 2, 17 (1st Cir. 2007) (“Accordingly, we conclude that Jones’ conduct was such an obvious violation of the Fourth Amendment’s general prohibition on unreasonable force that a reasonable offi cer would not have required prior case law on point to be on notice that his conduct was unlawful”); Drummond ex rel. Drummond v. City of Anaheim, 343 F.3d 1052, 1062 (9th Cir. 2003) (“We need no federal case directly on point to establish that kneeling on the back and neck of a compliant detainee, and pressing the weight of two offi cers’ bodies on him even after he complained that he was choking and in need of air violates clearly established law, and that reasonable offi cers would have been aware that such was the case”). And this is what the Court of Appeals should have done here, especially since “the one against whom force was used has died.” Cyrus v. Town of Mukwonago, 624 F.3d 856, 862 (7th Cir. 2010) (cautioning against the grant of summary judgment “in excessive force cases because the evidence surrounding the offi cer’s use of force is often susceptible of different interpretations” particularly in cases where “the witness most likely to contradict the offi cer’s testimony – the victim – cannot testify”) (citation omitted). Its failure in this regard confl icts directly with the decisional law from other federal appellate circuits as well as with the precedent of this Court. A grant of certiorari to resolve these confl icts is therefore warranted.

18

CONCLUSION

This Court should grant certiorari review in this case not only because Petitioners, having lost a son to the wanton infl iction of deadly force, deserve a full airing of their claims against Respondents, but because the Eleventh Circuit’s decision, if left standing, will deprive other similarly situated Taser victims of their Fourth Amendment protections against excessive force.

Respectfully submitted,

ALBERT WAN

ATTORNEY AT LAW

1201 Peachtree Street NE400 Colony Square, Suite 200Atlanta, Georgia 30361(404) 872-7760albert@albertwanlaw.com

APPENDIX

Appendix A

1a

APPENDIX A — DECISION OF THE UNITED STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT, FILED FEBRUARY 27, 2012

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALSFOR THE ELEVENTH CIRCUIT

No. 11-10771

D. C. Docket No. 5:09-cv-00026-LGW-JEG

MARTHA HOYT, Individually, and as Administrator of the Estate of James Christopher Allen,

JAMES ALLEN,

Plaintiffs-Appellees,

versus

BERNARD COOKS, In his individual capacity, RANDY T. HARKLEROAD, In his individual capacity,

Defendants-Appellants.

Appeal from the United States District Court for the Southern District of Georgia

(February 27, 2012)

Before EDMONDSON and ANDERSON, Circuit Judges, and EDENFIELD,* District Judge.

* Honorable B. Avant Edenfi eld, United States District Judge for the Southern District of Georgia, sitting by designation.

Appendix A

2a

ANDERSON, Circuit Judge:

In May 2007, Bacon County Deputy Bernard Cooks and Alma Police Offi cer Randy Harkleroad repeatedly used their Tasers in an attempt to subdue and arrest a struggling James Christopher Allen (“Allen”), who died shortly thereafter while being transported to jail. In May 2009, Martha Hoyt and James Allen (“Plaintiffs”) brought suit individually and on behalf of Allen’s estate. Plaintiffs sued Bacon County, Georgia; Bacon County Sheriff Richard Foskey; the city of Alma, Georgia; Alma Police Chief Tom Taggart; Cooks; and Harkleroad (collectively, “Defendants”). The claims included excessive force, denial of medical care, violations of the Americans with Disabilities Act, assault, battery, negligence, and wrongful death.

After discovery, the district court granted summary judgment to Defendants on many of the claims. The only claims that survived summary judgment were Plaintiffs’ excessive force, assault, and battery claims against Cooks and Harkleroad; and negligence and wrongful death claims against Harkleroad. On the excessive force action brought under 42 U.S.C. § 1983, the district court denied qualifi ed immunity to Cooks and Harkleroad. On the state law actions, the district court denied offi cial immunity under Georgia law. Cooks and Harkleroad have fi led an interlocutory appeal to this Court.

Appendix A

3a

I. FACTS1

At around 2:02 a.m. on May 9, 2007, Cooks was driving his patrol car in Alma, Georgia, when he received word from dispatch that Allen had called 911 three times from his residence. Allen told the dispatcher that he was being sewn up in a suit and that demons were trying to get him.

At around 2:16 a.m., Cooks arrived at Allen’s residence, drove up the driveway, and rolled down his car’s front driver-side window. While screaming that demons were trying to get him, Allen ran out of the house towards the patrol car and yelled that Cooks was a demon who needed to be killed. Allen then lunged into Cooks’s patrol car through the open window and grabbed at Cooks’s shirt. Cooks pushed Allen away and moved the patrol car forward to dislodge him.

Cooks exited his patrol car and asked Allen what he was doing. Allen repeated that demons were trying to get him and that Cooks was a demon. Cooks unholstered his model X26 Taser. Allen began crawling towards Cooks, who retreated to his patrol car and called for assistance at around 2:17 a.m. Allen continued to crawl towards Cooks, who told Allen to lie down and be still. Allen obeyed and lay down.

1. We state the facts based on our own review of the record in the light most favorable to Plaintiffs. Johnson v. Clifton, 74 F.3d 1087, 1091 (11th Cir. 1996). We gather most of the facts from the summary that Cooks and Harkleroad gave to Georgia Bureau of Investigation Special Agent J. Kirk Smith because this is the approach advocated by Plaintiffs themselves and because we believe that Smith’s account contains the most plaintiff-friendly version of the facts.

Appendix A

4a

While waiting for backup to arrive, Cooks had his Taser drawn and made no effort to arrest Allen, who would occasionally try to get up but would lie down again when Cooks ordered him to do so. Harkleroad, who had been deputized to assist Bacon County sheriffs, arrived as back-up at around 2:27 a.m. At that point, Cooks holstered his Taser, which had not yet been activated, and told Harkleroad that Allen needed to be handcuffed and taken to jail.

Cooks repeatedly ordered Allen, who was still lying on the ground, to place his hands behind his back. However, Allen would place just his one hand behind his back while keeping the other hand outstretched. Harkleroad got on his knees and tried to grab Allen’s arms, but Allen continued to resist and would not allow both arms to be put behind his back.

Due to the diffi culty in trying to handcuff Allen, Cooks unholstered his Taser, shot a set of fl ying probes into Allen’s lower back, and discharged the device.2 The offi cers again ordered Allen to put both arms behind his back, but he still kept his arms outstretched, refusing to let the offi cers handcuff him.3 Cooks then used the Taser

2. Cooks’s and Harkleroad’s summaries disagree on the precise order in which they stunned Allen. We use the version that is most favorable to Plaintiffs.

3. Plaintiffs’ expert Melvin Tucker believes that Allen was experiencing “excited delirium,” a drug-induced condition in which a person tends to exhibit “1. imperviousness to pain; 2. great strength; 3. hyperthermia; 4. profuse sweating; 5. bizarre behavior; 6. aggression; 7. hyperactivity; 8. hallucinations; and 9. confusion and disorientation.” Dkt. 39 at 7-8.

Appendix A

5a

against Allen’s leg in “dry stun mode,”4 where the device was pressed directly against Allen’s skin to produce a burning sensation. Both offi cers were on their knees during their attempts to handcuff Allen, but he continued to roll around on the ground and refused to let the offi cers grab his arms and handcuff them. After several dry stuns, the offi cers were able to get handcuffs on one of Allen’s hands but were unable to handcuff both hands.

Allen continued to struggle and to ignore the offi cers’ commands. Unable to get Allen to comply, Cooks again used his Taser in dry stun mode on Allen’s leg. As Cooks tried to complete the handcuffi ng, Harkleroad unholstered his model M26 Taser and applied several additional dry stuns to Allen. During the entire sequence, the offi cers repeatedly ordered Allen to put his arms behind his back

4. “Dry stun mode” is also known as “drive stun mode.” Plaintiffs’ expert described the difference between the probes and dry stun:

The [Taser] was classifi ed as an electro-muscular disruptor when used to fi re small probes attached to the weapon with thin wires because, in that mode, it overrides the central nervous system and makes muscle control impossible. The TASER can also be used as a pain compliance weapon in what is called the “drive stun” mode. In the “drive stun” mode, the weapon is pressed against a person’s body and the trigger is pulled resulting in pain (a burning sensation) but the “drive stun” mode does not disrupt muscle control.

Dkt. 39 at 6-7.

Appendix A

6a

and tried to complete the arrest. Cooks and Harkleroad decided that their stuns were not having the desired effect, and the offi cers ceased using the Tasers. Cooks was then able to get Allen’s other hand handcuffed by physical force.

Allen asked why he was handcuffed, to which Cooks responded that Allen was under arrest for felony obstruction. Allen stated that he did not want to go to jail. He refused to walk, so Cooks and Harkleroad carried him to Cooks’s car. The offi cers searched Allen and found no weapons or drugs. Allen was placed in the back seat of Cooks’s patrol car, and Cooks secured Allen’s residence.

With Harkleroad following in his own patrol car, Cooks and Allen departed the scene en route to the Bacon County Sheriff’s Offi ce at around 2:41 a.m. During the trip, Allen asked how much longer until they arrived, to which Cooks replied that it would be a few more minutes. Upon arrival at the Sheriff’s Offi ce, Allen did not respond when Cooks tried to rouse him. Harkleroad retrieved ammonia capsules from a nearby EMT, but these also had no effect. Cooks pulled Allen from the car and found no pulse. CPR was performed, and Allen was then placed in an ambulance and taken to Bacon County Hospital, but he was pronounced dead upon arrival. The cause of death was listed as “cocaine-induced excited delirium in a background of coronary atherosclerotic disease.”

Cooks said that he had stunned Allen once with the probes and two times in dry stun mode, although his Taser data download showed that the device had been activated twelve times. Harkleroad said that he had stunned

Appendix A

7a

Allen three times in dry stun mode, but his Taser’s data download showed that it had been activated six times. The record shows that an “activation” of the Taser does not mean that the Taser actually touched or stunned Allen. In any event, the more signifi cant fact is that Allen was tased only once in the prong mode, and that all subsequent tasings were in the dry stun mode.5

Cooks stated that Allen had drug problems for the last twelve or thirteen years. Cooks had been called to Allen’s residence eight or nine times in the past, usually in the early morning hours when Allen would call 911 and say that he was seeing demons or was being assaulted. During past encounters, Allen had been verbally aggressive towards Cooks but had never been physically aggressive.

II. QUALIFIED IMMUNITY

Plaintiffs claim that Cooks and Harkleroad violated the Fourth and Fourteenth Amendments by using excessive force in their attempt to arrest Allen. Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002). Cooks and Harkleroad argue that they are entitled to qualified immunity.

We have jurisdiction over this interlocutory appeal because the case “presents the ‘core qualifi ed immunity’

5. As discussed below, the record in this case reveals a stark contrast between the prong mode (which overrides the central nervous system and disrupts muscle control) and the much less serious dry stun mode (which results merely in pain, a burning sensation).

Appendix A

8a

analysis of whether the facts, viewed in the light most favorable to Plaintiffs, establish that [Cooks and Harkleroad] violated [Allen’s] constitutional rights.” Grider v. City of Auburn, 618 F.3d 1240, 1253 n.18 (11th Cir. 2010). We review de novo a district court’s resolution of qualifi ed immunity on summary judgment, taking all facts in the light most favorable to the non-movants. Lee, 284 F.3d at 1190.

“Qualifi ed immunity offers complete protection for government offi cials sued in their individual capacities as long as their conduct violates no clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 1193-94 (quotations omitted). Qualified immunity is intended to “allow government offi cials to carry out their discretionary duties without the fear of personal liability or harassing litigation, protecting from suit all but the plainly incompetent or one who is knowingly violating the federal law.” Id. at 1194 (quotations and citations omitted).

Cooks and Harkleroad must fi rst establish that they were performing discretionary acts, which is undisputed here. Id. The court must then grant qualifi ed immunity unless the facts taken in the light most favorable to Plaintiffs show (1) that there was a violation of the Constitution and (2) that the illegality of Cooks’s and Harkleroad’s actions was clearly established at the time of the incident. Id.

The Supreme Court has stated that we have discretion in deciding which of those two prongs to address fi rst.

Appendix A

9a

Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 818 (2009). Because we fi nd that the illegality of Cooks’s and Harkleroad’s behavior was not clearly established at the time, we need not decide whether there was a constitutional violation. Id.

The inquiry into whether a right is clearly established “must be undertaken in light of the specifi c context of the case, not as a broad general proposition.” Coffi n v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011). The right must be “suffi ciently clear that a reasonable offi cial would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039 (1987). “We have said many times that if case law, in factual terms, has not staked out a bright line, qualifi ed immunity almost always protects the defendant.” Priester v. City of Riviera Beach, 208 F.3d 919, 926 (11th Cir. 2000) (quotations omitted). In determining whether a right is clearly established, we look to the precedent of the Supreme Court of the United States, of this Court, and of the relevant state’s highest court. McClish v. Nugent, 483 F.3d 1231, 1237 (11th Cir. 2007).

In this case, there is no precedent that has staked out a bright line. Plaintiffs produce two cases, but both are inapposite. Plaintiffs’ fi rst case is Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004), where an offi cer used a single probe-style Taser stun on a truck driver who was “hostile, belligerent, and uncooperative.” Id. at 1278. However, Draper did not establish that any particular behavior would violate the Constitution. Indeed, it found that the offi cer’s actions were constitutional. Id. Also,

Appendix A

10a

Draper is distinguishable, primarily because the offi cers in that case were able to handcuff the suspect after just one use of the Taser, whereas Cooks and Harkleroad were unable to fully handcuff Allen even after repeated stuns. Id. at 1273-74. Accordingly, Draper did not give Cooks and Harkleroad fair warning that their behavior would constitute excessive force. See Hope v. Pelzer, 536 U.S. 730, 741, 122 S. Ct. 2508, 2516 (2002).

The only other case Plaintiffs cite to support the argument that the illegality of Cooks’s and Harkleroad’s actions was clearly established is Oliver v. Fiorino, 586 F.3d 898 (11th Cir. 2009). However, Oliver was issued in October 2009, and thus it cannot have put Cooks and Harkleroad on notice that their behavior in May 2007 could constitute excessive force. Hope, 536 U.S. at 741, 122 S. Ct. at 2516 (noting that the proper inquiry is “whether the state of the law [on the date of the incident] gave respondents fair warning that their alleged treatment of [the suspect] was unconstitutional”). Accordingly, Plaintiffs have produced no caselaw that put Cooks and Harkleroad on notice that their actions would violate a clearly established right.

However, Plaintiffs are correct in arguing that a right can be clearly established even in the absence of caselaw. Priester, 208 F.3d at 926. For there to be such “obvious clarity” that an offi cer’s conduct would violate a clearly established right even in the absence of caselaw, the conduct must have been “so far beyond the hazy border between excessive and acceptable force that [the offi cer] had to know he was violating the Constitution.”

Appendix A

11a

Smith v. Mattox, 127 F.3d 1416, 1419 (11th Cir. 1997). This would require that every reasonable offi cer in Cooks and Harkleroad’s position would inevitably conclude that the force was unlawful. Priester, 208 F.3d at 926-27. Oliver was such a case, and Plaintiffs argue that it is very similar to the facts of this appeal.6

When determining whether force was excessive and unreasonable, we look to several factors, including the severity of the crime at issue, whether the suspect posed an immediate threat, and whether the suspect actively resisted arrest. See Oliver, 586 F.3d at 905-07. This is done “from the perspective of a reasonable offi cer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 905.

A. Severity of Crime Committed

In Oliver, Anthony Oliver “was not accused of or suspected of any crime, let alone a violent one.” Id. at 908. Here, however, Allen had just recently committed assault and battery on a police offi cer by lunging through

6. Although the Oliver opinion was issued after the incident here, it is relevant because it held that the conduct of the offi cers there rose to the level of a constitutional violation as a matter of obvious clarity. Thus, if the conduct of Cooks and Harkleroad were identical to, or substantially similar to, the actions condemned in Oliver, then what was a matter of obvious clarity two years later in Oliver might indicate that such similar actions would also violate clearly established rights even two years earlier. However, as noted below, the conduct of Cooks and Harkleroad was neither identical to nor substantially similar to that of the offi cers in Oliver. See infra.

Appendix A

12a

the patrol car window and grabbing the offi cer’s shirt while threatening to kill him. Clark v. State, 714 S.E.2d 736, 737 (Ga. Ct. App. 2011) (“Under OCGA § 16-5-20(a), a person commits the offense of simple assault when he either (1) attempts to commit a violent injury to the person of another; or (2) commits an act which places another in reasonable apprehension of immediately receiving a violent injury.”) (quotations and alterations omitted); Williams v. State, 651 S.E.2d 347, 349 (Ga. Ct. App. 2007) (“In Georgia, a person commits simple battery when he intentionally makes physical contact of an insulting or provoking nature with the person of another.”) (quotations and alterations omitted). Besides being an assault and battery on a law enforcement offi cer, Allen’s behavior also amounted to obstruction. Long v. State, 583 S.E.2d 158, 159 (Ga. Ct. App. 2003) (“A person commits the offense of obstruction of a law enforcement offi cer when he knowingly and willfully obstructs or hinders any law enforcement offi cer in the lawful discharge of his offi cial duties.”) (quotations omitted). Against the background of whether every reasonable offi cer would have inevitably concluded that the force was unlawful, this factor weighs in favor of Cooks and Harkleroad. Priester, 208 F.3d at 926-27; Vinyard v. Wilson, 311 F.3d 1340, 1347 (11th Cir. 2002) (“Generally, more force is appropriate for a more serious offense and less force is appropriate for a less serious one.”) (quotations omitted).

B. Threat Posed

In Oliver, the decedent “did not act belligerently or aggressively” towards offi cers, by-standers, or himself. Oliver, 586 F.3d at 908. Here, however, only a brief period

Appendix A

13a

of time had passed since Allen’s very aggressive actions towards Cooks. Allen’s acts were contemporaneous with repeated threats to kill Cooks, whom Allen believed to be a demon. Also weighing against Allen is the fact that Cooks waited for back-up to arrive so he could have assistance in making the arrest. Further, Allen continued to pose a danger during the time when only one of his hands was handcuffed; without both hands shackled, the single handcuff could be used as a weapon.

This combination of an assault, battery, very unusual behavior, and threats to kill Cooks7 would weigh against a conclusion that Cooks’s and Harkleroad’s behavior was “so far beyond the hazy border between excessive and acceptable force” that they had to know they were “violating the Constitution even without caselaw on point.” Mattox, 127 F.3d at 1419.

C. Level of Resistance

In Oliver, the decedent “complied with most of the offi cers’ directions.” Oliver, 586 F.3d at 908. Nonetheless, an officer continued to use probe-style stuns on the decedent “while he was writhing in pain on the hot pavement and after he had gone limp and immobilized.” Id.

Here, however, Allen resisted during the entire time that Cooks and Harkleroad tried to handcuff him. He

7. As noted supra at footnote 3, Plaintiffs’ expert believes that Allen was likely in a state of “excited delirium,” the symptoms of which include imperviousness to pain, great strength, bizarre behavior, aggression, and hallucinations.

Appendix A

14a

spread his arms apart to prevent being handcuffed, and he rolled around to keep his arms from being pulled behind his back. Even after repeatedly using their Tasers, Cooks and Harkleroad had considerable diffi culty in effecting the arrest. Again, this factor weighs in favor of fi nding that the force was not so excessive as to rise to the level of obvious clarity.

D. Balance of Interests

Lastly, we consider “the nature and quality of the intrusion on the individual’s Fourth Amendment interests” against “the countervailing governmental interests at stake.” Id. at 905. In Oliver, after one probe-style stun, Oliver was brought to the ground, and after several more stuns, he was lying on the hot asphalt, screaming in pain. Id. at 903. The offi cer reloaded another cartridge and stunned him again. Id. Even though Oliver was completely immobilized, he was subjected to yet another stun. Id. The offi cers on scene made no attempt to arrest or subdue him between stuns. Id. at 908.

The conduct of Cooks and Harkleroad is nothing like the conduct of the offi cers in Oliver. There, the offi cers repeatedly tased Oliver in the probe mode. Id. at 901 (at least eight times); id. at 903 (in the probe mode). By contrast, Cooks and Harkleroad tased Allen only once in the probe mode.8 All subsequent applications were in

8. This fi rst use of the Taser, the only use in the probe mode, was clearly a reasonable use of force under the instant circumstances, which provide at least as much support for the Taser use as the circumstances which we held reasonable in Draper, 369 F.3d at 1272-73, 1278.

Appendix A

15a

the dry stun mode, a much less serious application which (according to Plaintiffs’ own expert witness) does not override the central nervous system and does not disrupt muscle control. Rather the dry stun mode results only in pain, a burning sensation. Furthermore, in Oliver, the fi rst stun “brought Oliver to the ground.” Id. at 903. Although Oliver “never got back up, . . . never hit, kicked, punched or threatened the offi cer,” id., the offi cer tased Oliver twice more (in the prong mode) after which Oliver was “lying on the scorching hot asphalt screaming in pain that it was ‘too hot.’” Id. When Oliver “tried to sit up, he fl opped down like a ‘wet cloth’ because he had no control over his body.” Id. Nevertheless, the offi cer noticed that one of the Taser wires had become disconnected from the Taser prong, and the offi cer “loaded a second cartridge into her Taser and began tasing Oliver again” three or four more times, and then a fi nal time after he was “totally immobilized, leaving him clenched up and lying on his back.” Id. at 903, 908. By contrast, Allen never ceased his vigorous resistance to the attempts to handcuff him. Cooks testifi ed that the tasing seemed to have no effect and that Allen never said that the tasing hurt. And the offi cers here did not tase Allen, even in the dry stun mode, after Allen ceased resistance, and certainly not after Allen had lost control of his body (like a “wet cloth”) or was “totally immobilized.” Finally, the offi cers in this case, unlike the offi cers in Oliver, repeatedly attempted to handcuff Allen between the tasing attempts, but were unable to do so because of Allen’s continued resistance.

Thus, the facts in Oliver are so different from the instant facts that the obvious clarity holding in Oliver falls short of indicating obvious clarity in this case.

Appendix A

16a

The government interests at stake here are strong. Cooks and Harkleroad could not wait indefi nitely for Allen to stop resisting or for his strange behavior to subside. Allen could not be safely transported until he was restrained. We cannot conclude that clearly established law prevented Cooks and Harkleroad from using their Tasers in the manner used here. Other alternatives, e.g. brute physical force, also presented dangers both to Allen and the offi cers.

Given all of these factors, Cooks’s and Harkleroad’s conduct does not rise to the level of “obvious clarity,” which would require all reasonable offi cers to inevitably conclude that the force used was unlawful. Id.; Priester, 208 F.3d at 926-27. Accordingly, Cooks and Harkleroad are entitled to qualifi ed immunity on the excessive force claim.

III. STATE LAW CLAIMS

Plaintiffs also argue that Cooks and Harkleroad are liable for assault and battery, and that Harkleroad is liable for negligence and wrongful death. On these state law claims, the district court found that Cooks and Harkleroad were not entitled to offi cial immunity under Georgia law. We review de novo a district court’s summary judgment denial of offi cial immunity. See Cummings v. DeKalb Cnty., 24 F.3d 1349, 1352 (11th Cir. 1994); Griesel v. Hamlin, 963 F.2d 338, 341 (11th Cir. 1992).

Appendix A

17a

A. Assault and Battery

Under the Constitution of Georgia, Cooks and Harkleroad will have off icial immunity for their discretionary acts unless they acted with “actual malice.” Merrow v. Hawkins, 467 S.E.2d 336, 337 (Ga. 1996). There is no dispute that their actions were discretionary. “Actual malice” requires “a deliberate intention to do wrong, and does not include implied malice, i.e., the reckless disregard for the rights or safety of others. A ‘deliberate intention to do wrong’ such as to constitute the actual malice necessary to overcome offi cial immunity must be the intent to cause the harm suffered by [the suspect].” Murphy v. Bajjani, 647 S.E.2d 54, 60 (Ga. 2007) (quotations and citations omitted).

In this case, no reasonable jury could fi nd that Cooks and Harkleroad used their Tasers with the deliberate intent to do wrong. As discussed above, the Tasers were employed during a struggle to arrest Allen, who refused to let his arms be brought together and handcuffed.

B. Negligence and Wrongful Death

Harkleroad argues that he cannot be held liable under Georgia law for any negligence-based claim resulting from the performance of discretionary acts.9 Plaintiffs concur with Harkleroad on that position–as do we. See Campbell v. Goode, 695 S.E.2d 44, 45 (Ga. Ct. App. 2010).

9. A wrongful death claim is premised upon negligence, so we address it together with Plaintiffs’ common law negligence claim. See Allrid v. Emory Univ., 303 S.E.2d 486, 488 (Ga. Ct. App. 1983).

Appendix A

18a

IV. CONCLUSION

For the foregoing reasons the judgment of the district court is reversed, and the case is remanded with instructions that judgment be entered for Cooks and Harkleroad.

REVERSED and REMANDED.

Appendix B

19a

APPENDIX B — ORDER OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA, WAYCROSS DIVISION,

FILED JANUARY 26, 2011

UNITED STATES DISTRICT COURTFOR THE SOUTHERN DISTRICT OF GEORGIA,

WAYCROSS DIVISION

CV 509-026

MARTHA HOYT, Individually and as Administrator of the Estate of JAMES CHRISTOPHER ALLEN, and

JAMES ALLEN,

Plaintiffs,

v.

BACON COUNTY, GEORGIA, SHERIFF RICHARD FOSKEY, in his offi cial capacity and individual capacity, BERNARD COOKS, in his individual

capacity, THE CITY OF ALMA, GEORGIA, TOM TAGGART, CHIEF OF POLICE, ALMA, GEORGIA,

in his offi cial capacity and individual capacity, and RANDY T. HARKLEROAD, in his individual capacity,

Defendants.

ORDER

Presently before the Court is Defendants’ Motion for Summary Judgment on all counts of Plaintiffs’

Appendix B

20a

First Amended Complaint. For the reasons set forth below, summary judgment is GRANTED IN PART and DENIED IN PART.

BACKGROUND

Early in the morning hours of May 9, 2007, James Christopher Allen (“Allen”) called 911 multiple times for assistance at his residence, advising a dispatcher that “demons were trying to get him.” Defendant Bernard Cooks of the Bacon County Sheriff ’s Department was dispatched to Allen’s residence, and arrived at approximately 2:16 a.m. Upon his arrival, Allen ran toward Cooks’s patrol car, yelling that “demons were trying to get him.” The car window was down, and Allen placed his head inside. Cooks drove the car forward in an attempt to shake off Allen, who continued to try to get further inside the car. Allen eventually fell off the car. Cooks, after stopping his vehicle, walked towards Allen and asked how he could help him. Allen replied, yelling that Cooks had to “kill these demons.” Cooks asked Allen to calm down. Allen began to crawl toward Cooks, who then returned to his patrol car. Allen continued to crawl toward Cooks while Cooks was in the patrol car, yelling and soaking with perspiration. Cooks advised Allen to get down on the ground. At some point during these events, Cooks requested back-up at 2:17 a.m.

Defendant Randy T. Harkleroad of the City of Alma Police Department was dispatched and arrived at Allen’s residence at approximately 2:27 a.m. Cooks told Harkleroad that Allen needed to be handcuffed and

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transported to the jail. While Allen was lying on the ground, Cooks advised him to place his hands behind his back. Allen placed only one hand behind his back. Cooks repeated his instructions. Allen tried to rise from the ground. Cooks unholstered his taser and again asked Allen to get down and put his hands behind his back. Allen got down, but again placed only one hand behind his back.

Cooks then discharged his taser into Allen’s back. In an effort to arrest Allen, Cooks and Harkleroad tased Allen at least six times, and possibly as many as eighteen times. A dispute of material fact between the parties concerns the number of times Defendants tased Allen. Plaintiffs initially alleged in their Amended Complaint that Defendants tased him at least nine times. First Am. Compl. ¶ 45, ECF No. 44. Defendants maintain that they made only “six applications of the tasers.” Mot. Summ. J. 7, ECF No. 59-1. Plaintiffs point out that download data from Defendants’ tasers indicate that they may have tased Allen as many as eighteen times. Resp. 23. During his deposition, Cooks acknowledged that the taser download data from the Georgia Bureau Investigation (GBI) fi le -- presented to him as a deposition exhibit -- stated that his taser was deployed or discharged twelve times. Cooks Dep. 182:18-22, ECF No. 65-1. Harkleroad, looking at download data for his taser -- also presented as a deposition exhibit -- acknowledged that the data showed six administrations of the taser. Harkleroad Dep. 51:14-16, ECF No. 65-2. Both Cooks and Harkleroad nonetheless maintain that they did not actually fire their tasers twelve and six times, respectively, but could not offer any explanation of why the download data showed numbers

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higher than that. Cooks Dep. 183:5-7; Harkleroad Dep. 51:23-25. Defendants argue that “taser download data only indicate the number of times that each particular taser was activated,” not necessarily how many times the tasers made contact with Allen’s skin, and Plaintiffs have conceded this possibility. Reply 12; see also Resp. 18 (citing deposition testimony of John Murray that “[t]aser downloads record[] the number of fi rings from the taser and the length of the cycle, but [ ] will not show if the taser came into contact with anything”). Nonetheless, Plaintiffs maintain that it is possible that Defendants’ tasers made contact with Allen’s body as many as eighteen times, and Defendants have admitted the tasers made contact at least six times.1

After tasing and fi nally handcuffi ng Allen, Cooks placed him in the backseat of his patrol car and transported him to the Bacon County Sheriff’s Offi ce and jail. Harkleroad left the scene at 2:41 a.m., following Cooks in his own vehicle. During the ride, Allen asked Cooks how long it would take to get to the jail, to which Cooks responded that it would take another minute or

1. Defendant Cooks testifi ed that he tased Allen once in the dart mode and twice in the drive-stun mode. Mot. Summ. J. 7. Defendant Harkleroad testifi ed that he tased Allen only in the drive-stun mode. Id. at 6. The drive-stun mode and dart mode are distinct. In the drive-stun mode, the offi cer physically touches the taser to the suspect’s body, causing temporary, localized pain. In the dart mode, by contrast, the offi cer shoots darts at the suspect from a distance, causing neuromuscular incapacitation. See Snauer v. City of Springfi eld, No. 09-CV-6277, 2010 WL 4875784, at *3 (D. Or. Oct. 1, 2010) (citing Brooks v. City of Seattle, 599 F.3d 1018, 1026 (9th Cir. 2010)).

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so. Cooks arrived at the jail complex at 2:50 a.m., at which time he found Allen unresponsive. Cooks went to the fi re department to obtain ammonia capsules from an EMT to try to arouse Allen. Harkleroad attempted unsuccessfully to rouse Allen with the ammonia.2 Cooks pulled Allen from the vehicle and checked for a pulse, fi nding none. Harkleroad also unsuccessfully searched for a pulse. They then asked a nearby EMT to check for a pulse. The 911 log indicates that Defendants requested EMT assistance at 2:56 a.m. See id. When the EMT could not fi nd a pulse, Cooks began to administer CPR to Allen. They requested an ambulance and Allen was taken to the hospital at approximately 3:03 a.m. At 3:25 a.m., Allen was pronounced dead. An autopsy report of the Division of Forensic Sciences of the GBI stated “that Allen died as a result of cocaine-induced excited delirium in a background of coronary atherosclerotic disease.” Am. Compl. ¶¶ 60-61, ECF No. 44.

Decedent Allen’s parents, both individually and on behalf of Allen’s estate, brought suit against Defendants, raising three federal-law claims and three state-law claims. Defendants now move for summary judgment as to all claims.

2. There is a factual discrepancy as to whether Harkleroad was actually present at this point. Compare Resp. 8, 10 (indicating he was present at the jail complex), with Resp. 4 (citing 911 dispatcher’s deposition testimony that when Cooks arrived at the jail complex, Harkleroad arrived back in the City of Alma). For purposes of this motion, the Court will view the facts in the light most favorable to the Plaintiffs -- that Harkleroad was indeed present at the jail complex and was aware that Allen was unresponsive.

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SUMMARY JUDGMENT STANDARD

The Federal Rules of Civil Procedure provide for summary judgment “if the pleadings, the discovery and disclosure materials on fi le, and any affi davits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c)(2). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue as to any material fact is “genuine” if, from the evidence, “a reasonable jury could return a verdict for the nonmoving party.” Id.

The party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party discharges this burden, the burden then shifts to the nonmoving party to offer affi rmative evidence showing that a genuine issue of material fact does exist, requiring a trial. Anderson, 477 U.S. at 257. “[A] mere scintilla of evidence” is insuffi cient to satisfy this burden. Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004). On this motion, the Court views the facts in the light most favorable to the nonmovant. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

QUALIFIED IMMUNITY

Before considering the merits of Plaintiffs’ § 1983 claims (Counts One and Two), the Court must fi rst assess

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whether the Defendants against whom these claims were asserted, Bernard Cooks and Randy T. Harkleroad,3 are entitled to qualifi ed immunity.

Qualif ied immunity exists to encourage law-enforcement offi cials to perform their duties appropriately without fear of personal liability or harassing litigation. Oliver v. Fiorino, 586 F.3d 898, 904 (11th Cir. 2009) (citing Anderson v. Creighton, 483 U.S. 635, 638-39 (1987)); see also id. (“[Qualifi ed immunity] ‘protect[s] from suit all but the plainly incompetent or one who is knowingly violating federal law.’ ” (quoting Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002))). Nonetheless, qualifi ed immunity is not absolute, and two primary requirements must be satisfi ed for it to protect an offi cer from suit. First, the offi cer must have been “acting within his discretionary authority.” Garczynski v. Bradshaw, 573 F.3d 1158, 1166 (11th Cir.

3. Plaintiffs initially also asserted these claims against Sheriff Richard Foskey and Chief of Police Tom Taggart in their individual capacities. First Am. Compl. Counts One, Two, ECF No. 44. In their Response to Defendants’ Motion for Summary Judgment, however, Plaintiffs withdrew any claim that Foskey and Taggart were personally liable for any constitutional violations committed by Cooks and Harkleroad. Resp. 25, ECF No. 75. Though Plaintiffs named Richard Foskey and Tom Taggart in the case caption in both their offi cial and individual capacities. Plaintiffs specify in both the title of Count I and the allegations therein that they assert this claim against Foskey and Taggart “in their individual capacities.” See Am. Compl. ¶ 76, ECF No. 44 (emphasis added). Thus, because Plaintiffs in their Response effectively withdrew their claims against Foskey and Taggart in their personal or individual capacities, there is no remaining § 1983 claim for denial of medical care against Foskey and Taggart.

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2009). Second, his conduct must not have violated ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’ ” Id. (citing Lewis v. City of West Palm Beach, 561 F.3d 1288, 1291 (11th Cir. 2009)). The Court may decide these two questions in any order. Oliver, 586 F.3d at 905.

DISCUSSION

Two Plaintiffs, both individually and one also as administrator of Allen’s estate, raised six claims, each against a different combination of the six named defendants. Mindful of the Eleventh Circuit’s command to “defi nitively identif[y] the parties’ claims and defenses and . . . squeeze[ ] the case down to its bare essentials,” Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 982 (11th Cir. 2008), the undersigned has attempted to address each possible claim combination below. Two defendants, Bacon County Sheriff Richard Foskey and Alma Chief of Police Tom Taggart, are subject to early dismissal.4

I. Count One: § 1983 Claim for Denial of Medical Care Qualifi ed Immunity

A. Were the Defendants Acting Within Their Discretionary Authority

The fi rst prong of the two-part analysis is satisfi ed. A police offi cer’s offi cial responsibilities include making arrests. See Crosby v. Monroe Cnty., 394 F.3d 1328,

4. See supra note 3.

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1332 (11th Cir. 2004) (fi nding that a sheriff’s deputy was performing a discretionary function when he arrested plaintiff “[b]ecause making an arrest is within the offi cial responsibilities of a sheriff’s deputy”). Cooks and Harkleroad, therefore, were performing discretionary functions when they decided to arrest Allen, carried out the arrest, and transported him to the jail.

B. Did Defendants’ Conduct Violate a Clearly Established Statutory or Constitutional Right of Which a Reasonable Person Would Have Known

A pretrial detainee has a constitutional right under the Fourteenth Amendment5 to have basic human needs met, such as medical care. Gary v. Modena, 244 F. App’x 997, 999 (11th Cir. 2007). If there was clearly established case law as of May 9, 2007 holding that Defendants Cooks’s and Harkleroad’s conduct amounted to a denial of medical care in violation of Allen’s constitutional rights, they are not entitled to qualifi ed immunity. In determining whether there is clearly established pertinent law, the Court “look[s] to decisions of the U.S. Supreme Court, the United States Court of Appeals for the Eleventh Circuit, and the highest court of the pertinent state.” Marsh v. Butler Cnty., 268 F.3d 1014, 1033 n.10 (11th Cir. 2001). “A precedent with materially similar facts is not always required; but for a federal right to be clearly

5. The Fourteenth Amendment governs claims for denial of medical care brought by pretrial detainees, whereas the Eighth Amendment governs such claims brought by convicted prisoners. See Gary v. Modena, 244 F. App’x 997, 999 (11th Cir. 2007).

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established, the applicable law ‘must be suffi ciently clear that a reasonable offi cial would understand that what he is doing violates that right.’ ” Cagle v. Sutherland, 334 F.3d 980, 990 n.15 (11th Cir. 2003) (quoting Hope v. Pelzer, 536 U.S. 730, 739 (2002)).

Plaintiffs do not specifi cally address Defendants’ qualified immunity from suit on Count I.6 Plaintiffs simply contend that Defendants should have sought immediate medical attention for Allen because he was a “high-risk subject” on whom they used a taser, and further, that “upon fi nding Allen unconscious” when they arrived at the jail, they “ignored the medical emergency which Allen’s condition presented and failed to initiate life-saving methods, such as CPR, in a timely and meaningful manner.” First Am. Compl. ¶¶ 71, 73, ECF No. 44. Plaintiffs may be implying that Defendants are not entitled to qualifi ed immunity because they did not immediately perform CPR on Allen. However, Plaintiffs have offered no case law -- and the Court can fi nd none -- that would have put Defendants on notice that their failure to do so was a constitutional violation.

Defendants did not learn that Allen was unconscious until their arrival at the jail. Plaintiffs and Defendants

6. In their Response, Plaintiffs make only two summary statements regarding qualifi ed immunity, neither of which address the denial-of-medical-care claim or the objective-reasonableness standard, but mention only the excessive-force claim. See Resp. 25 (“For the same reason that defendants are not entitled to summary judgment on the issue of excessive force, they are not entitled to qualifi ed immunity. Under Oliver v. Fiorino, 586 F.3d 898 (11th Cir. 2009) they knew their conduct was illegal.”).

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dispute the chronology of events occurring upon and after Cooks’s arrival at the jail with Allen. The Court views the facts in the light most favorable to Plaintiffs: Upon learning Allen was unconscious, Defendants fi rst tried to rouse him with ammonia capsules and then checked for a pulse. They then asked an EMT to check for a pulse. When the EMT could not fi nd a pulse, Cooks began to perform CPR on Allen. Then, Allen was transported to a hospital via ambulance. First Am. Compl, ¶¶ 49-58, ECF No. 44. According to the 911 log, Cooks arrived at the jail complex at 2:50 a.m. and requested EMT assistance at 2:56 a.m. See Resp. 4.

Thus, the question for this Court is: Did Defendants Cooks and Harkleroad violate Allen’s clearly established constitutional right to medical care by (1) fi rst, trying to rouse him with ammonia, (2) then checking his pulse, (3) then seeking EMT assistance in checking his pulse, and (4) fi nally, beginning to perform CPR? The Court fi nds no relevant case law that clearly establishes that Defendants’ actions in seeking EMT treatment or performing CPR was objectively unreasonable and violated Allen’s constitutional rights. Signifi cantly, Plaintiffs themselves allege that a maximum of only six minutes passed between the moment that (1) Cooks and Harkleroad learned Allen was unconscious, and (2) Cooks and Harkleroad sought EMT assistance and then began performing CPR on Allen.

This Court does not imply that a six-minute delay in medical care is per se reasonable or unreasonable, but simply that there was no clearly established case law on May 9, 2007 that would have given a reasonable offi cer in

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Defendants’ position reason to believe he was violating Allen’s constitutional rights. Case law regarding § 1983 claims for denial of medical care does not clearly alert7 law-enforcement offi cials that a delay of six or fewer minutes in medical treatment after an offi cial has unsuccessfully tried to awaken the detainee is patently violative of the detainee’s Fourteenth Amendment rights. Nor would the offi cers’ conduct and delay, if any, be manifestly unlawful to any other reasonable offi cer under the circumstances.

Though Plaintiffs imply that Defendants Cooks and Harkleroad should have immediately performed CPR, rather than using ammonia or repeatedly checking for a pulse, “[t]he best response to a serious medical need is not required by federal law in these cases.” Youmans v. Gagnon, 626 F.3d 557, 2010 WL 4608409 (11th Cir. 2010). Judicial opinions on denial of medical care are highly fact-specifi c. Nonetheless, some generalized principles can be gleaned: “lengthy delays are often inexcusable; shorter delays may also constitute a constitutional violation if injuries are suffi ciently serious; and the reason for the delay must weigh in the inquiry.” Id.; see also Harris, 21 F.3d at 393-94 (“The tolerable length of delay in providing medical attention depends on the nature of the medical need and the reason for the delay.”).

Eleventh Circuit precedent does not clearly establish that Defendants’ alleged delay in providing Allen with

7. See Harris v. Coweta Cnty., 21 F.3d 388, 393 (11th Cir. 1994) (“For purposes of qualifi ed immunity, [ ] the pre-existing law must give offi cials some sense of what amount of time constitutes actionable delay in order for the law to be established with the particularity required . . . .”).

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medical care was unconstitutional. In Youmans, where the plaintiff was beaten by police offi cers and “had visible abrasions on his head, face, shoulder, elbow, and hand,” the Eleventh Circuit held that “it was not already clearly established as a matter of law in June 2007 that a four-hour delay for injuries of this kind violated the Fourteenth Amendment.” 626 F.3d 557, 2010 WL 4608409, at *1, *4.

By contrast, in Bozeman v. Orum, the Eleventh Circuit found that the offi cers’ delay in providing medical care to pretrial detainee Mario Haggard constituted deliberate indifference. According to the Court, a jury could fi nd from the evidence that Haggard was unconscious and not breathing while being carried by the offi cers down a jail corridor. 422 F.3d 1265, 1273 (11th Cir. 2005). In that case, the offi cers “physically handled Haggard for about fourteen minutes,” and it was evident from a videotape that during at least a portion of this time, “Haggard was motionless with his head dangling.” Id. In fi nding that the offi cers were deliberately indifferent to Haggard’s serious medical needs, the court emphasized that the offi cers knew Haggard was unconscious and not breathing but nevertheless failed to do anything to help him. Id. The court also noted the lack of any reason for those offi cers’ delay. Id.

The present case is factually distinct from Bozeman.8 Here, Defendant Cooks had no reason to believe Allen was unconscious during the ride to the jail. In fact, Allen

8. As the Eleventh Circuit has noted, “the threshold of deliberate indifference is connected to combinations of diverse interdependent factual elements.” Youmans, 626 F.3d 557, 2010 4608409, at *4.

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was awake and asked Cooks how long it would take to get to the jail. Mot. Summ. J. 7 (citing Cooks’s deposition). Thus, any delay in learning Allen was unconscious was truly de minimis. Allen’s unconsciousness was not clearly apparent to Cooks, as Haggard’s unconsciousness was to the offi cers in Bozeman, and as soon as Cooks learned of Allen’s unconsciousness, he and Harkleroad commenced efforts to revive him. Furthermore, during the alleged delay, the offi cers were not ignoring Allen’s medical needs like the offi cers in Bozeman -- instead, they were trying to revive Allen and asking for EMT assistance. Given the length of and reason for the delay in this case, there was no precedent putting Defendants on notice that their actions were clearly unconstitutional. Defendants did not violate any clearly established right with their (at most) six-minute delay. Accordingly, they are entitled to qualifi ed immunity on Plaintiffs’ § 1983 claim for denial of medical care. Summary judgment is proper as to Count One.

II. Count Two: § 1983 Claim for Excessive Force Qualifi ed Immunity

A. Were Defendants Acting Within Their Discretionary Authority?

For the same reasons stated with regard to Count One, this requirement is met. Defendants Cooks and Harkleroad were performing discretionary functions in deciding and attempting to arrest Chris Allen.

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B. Did Defendants’ Conduct Violate a Clearly Established Statutory or Constitutional Right of Which a Reasonable Person Would Have Known?

1. Was There a Violation of a Constitutional Right?

Plaintiffs contend that Defendants Cooks and Harkleroad violated Chris Allen’s Fourth Amendment right to be free from the use of excessive force during an arrest. See Oliver, 586 F.3d at 905 (noting that the Fourth Amendment encompasses this right). The Fourth Amendment’s objective-reasonableness standard applies to this claim. Glenn v. City of Columbus, 375 F. App’x 928, 932 (11th Cir. 2010). Not all force is excessive; “[i]t is axiomatic that the ‘right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.’ ” Brooks v. Clayton Cnty., No. 1:07-CV-0555, 2010 WL 425949, at *9 (N.D. Ga. Feb. 19, 2009) (citing Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th Cir. 2002)). A determination of the reasonableness of force used must consider the specifi c circumstances facing the law-enforcement offi cials at the time, as well as their frequent need to make “split-second decisions.” Id. (citing Jackson v. Sauls, 206 F.3d 1156, 1171-72 (11th Cir. 2000)). This determination views the offi cers’ actions “‘from the perspective of a reasonable offi cer on the scene, rather than with the 20/20 vision of hindsight.’ ” Oliver, 586 F.3d at 905 (citing Kesinger, 381 F.3d at 1249).

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The reasonableness determination involves analysis of a number of factors, as well as a balancing of the individual’s rights against the government’s interests. See id. The amount of force that Defendants used must be measured against three factors: “the severity of the crime at issue; whether the suspect poses an immediate threat to the safety of the offi cers or others; and whether the suspect actively resisted arrest or attempted to evade arrest by fl ight.” Id. The Court must also balance “‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’” against the government’s interests in carrying out arrests effi ciently and safely. See id. (quoting Graham v. Connor, 490 U.S. 386, 396, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989)).

a. Severity of the Crime

The fi rst factor -- the severity of the crime -- weighs in Plaintiffs’ favor. Defendant Cooks did not go to Allen’s residence to apprehend him for a crime; instead, it was Allen who called 911 three times, asking for assistance. First. Am. Compl. ¶¶ 16-18, ECF No. 44. The crime that precipitated Defendants’ use of force was Allen’s failure to place both hands behind his back. For the purposes of resolving the present motion, the relative severity of this conduct does not support the amount of force used.

b. Immediacy of Threat

Analysis of the second factor -- whether the suspect posed an immediate threat to the offi cers’ or others’ safety -- is less defi nitive, but ultimately lends support

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to Plaintiffs’ case. Plaintiffs admit that Allen, who was yelling nonsensical things and was soaking wet with perspiration, did stick his head inside Cooks’s patrol car and later crawl on the ground toward Cooks. Cooks may have interpreted this as a threat to his safety, but in response simply called for back-up. No force was used until more than ten minutes later, after Harkleroad had arrived. First Am. Compl. ¶¶ 31, 35, ECF No. 44. Before Harkleroad arrived, all Cooks did was advise Allen “to calm down, to lay down and to be still.” Id. ¶ 34. If the offi cer had perceived an immediate threat necessitating the use of force, he would have employed force when faced with that threat, rather than waiting until the suspect had become largely compliant.

It was not until Harkleroad’s arrival that Cooks told Harkleroad that Allen needed to be arrested, and instructed Allen to place his hands behind his back. Id. ¶¶ 36, 37. At this point, Allen remained on the ground. Id. ¶ 37. When Allen attempted to rise one time, Cooks instructed him to lay down, and he complied. Id. ¶¶ 40-42. Allen’s only persistent noncompliance was his failure to place one hand behind his back (he had complied in part by placing the other hand behind his back). Id. ¶¶ 38, 42. For the purposes of considering the present motion, this failure of Allen to place his other hand behind his back does not indicate that the offi cers faced an immediate threat to their safety, such that use of the amount and type of force was proper. It should be noted that all indications are that Allen remained on the ground, complying with Defendants’ instructions to do so. As for the safety of others, there were no other persons visible to the offi cers

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during the incident. Even if there were others inside the residence, at the time Defendants used force on Allen, Allen was lying on the ground, motionless -- i.e., not posing an immediate threat to the safety of any individuals potentially inside the home.

c. Actively Resisting Arrest

The third factor -- whether the suspect actively resisted arrest or attempted to evade arrest by fl ight -- also weighs in Plaintiffs’ favor. It is undisputed that Allen did not attempt to fl ee the scene to evade arrest. Defendants contend, however, that Allen actively resisted arrest in that “he repeatedly refused (even after being tased) to place his hands behind his back.” Mot. Summ. J. 16. Where courts have found that suspects actively resisted arrest, their conduct was much more combative and required force to restrain them. For example, in Barnett v. City of Florence, Alabama, the Eleventh Circuit found that the suspect was actively resisting arrest where he “was cursing and combative” -- “so combative during the pat down that he had to be physically restrained” -- and even continued to resist “[a]fter being pushed against the police car.” No. 09-16000, 2010 WL 4864582, at *l-2 (11th Cir. Dec. 1, 2010); see also Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1306 (11th Cir.2009) (fi nding use of taser appropriate where plaintiff “actively resisted the deputies’ efforts at effectuating a lawful arrest” and her behavior “was violent, aggressive and prolonged and the evidence demonstrates that she was clearly a danger to herself and others”).

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Allen’s actions can be more properly characterized as passively, rather than actively, resisting arrest. Allen did attempt to rise after being advised to lie down the fi rst time, but after a second instruction to lie down, Allen remained on the ground. First Am. Compl. ¶¶ 37, 40, 41-42, ECF No. 44. Allen’s sole, short-lived attempt to move from the ground does not rise to the level of “actively” resisting arrest. Nor does his refusal, for whatever reason, to place his left hand behind his back.

d. Balancing of Interests

Furthermore, the government’s interest in carrying out an arrest does not justify Defendants’ signifi cant intrusion on Allen’s Fourth Amendment rights to be free from excessive force. Certainly, law-enforcement offi cials have a legitimate interest in getting suspects to comply so that they may arrest them, but that interest does not override the “nature and quality”9 of the intrusion in this case. Viewing the facts in the light most favorable to Plaintiffs, Defendants tased Allen eighteen times over a relatively short time period. Even if Defendants’ version were true, they tased Allen at least six times. Mot. Summ. J. 7. Though the Eleventh Circuit has held that a single use of a taser gun was reasonably proportionate to effectuate an arrest in a diffi cult, tense, and uncertain situation, see Draper v. Reynolds, 369 F.3d 1270, 1278 (11th Cir. 2004), a jury could fi nd that the repeated tasering of Allen was disproportionate to the actual need for force under the circumstances and was thus unreasonable.

9. See Oliver, 586 F.3d at 905.

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2. Was the Right Clearly Established?

A right is generally considered “clearly established” based on relevant case law in existence at the time of the incident, as discussed supra. Viewing the facts in a light most favorable to the Plaintiffs, a reasonable offi cer in Defendants’ position would have known that his conduct violated Allen’s clearly established rights. The Eleventh Circuit’s recent decision in Oliver v. Fiorino clarifi es that, as far back as 2004, it was clearly established that it is unlawful to employ force as disproportionate as Plaintiffs maintain was used in the present case. See 586 F.3d 898.

In Oliver, the offi cer noticed a man, Oliver, standing in a median and attempting to fl ag her down on May 13, 2004. Id. at 901. When the offi cer stopped her vehicle, Oliver knocked on the rear driver-side window and tried unsuccessfully to open a locked door. Id. at 901-02. The offi cer instructed Oliver over her loud speaker to move to the front of the vehicle, and he complied. Id. at 902. She then instructed him to move further away, and he again complied. Id. She then exited her vehicle, at which point Oliver was standing about twenty-three feet away from her. She pulled out her taser gun and asked Oliver what the problem was. At some point, Oliver started to approach her. She raised her taser and told him to step away. He complied. She eventually called for back-up. The back-up offi cer soon arrived and attempted to move Oliver across the street. Oliver struggled and pulled away. The back-up offi cer held on to Oliver’s shirt as Oliver attempted to walk away across the street, but Oliver never tried to touch or assault him. Nevertheless, the initial offi cer tased Oliver and continued to do so. Id. at 902-03.

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The offi cer believed she tased Oliver approximately eleven or twelve times. Her taser log indicated that she tased Oliver a total of eight times over a two-minute period. By the last tase, Oliver was lying fl at and did not get up from the ground. Oliver began foaming at the mouth and screaming in pain. Id. at 904. The offi cer tried unsuccessfully to remove some of the taser prongs from Oliver’s body.10 Id. Paramedics transported Oliver to a hospital, where he was pronounced dead. Id. In both Oliver’s and Allen’s cases, cocaine was found in the decedents’ systems, but the plaintiffs offered expert witnesses who opined that the deaths were caused, at least in part, by applications of the tasers. Id. The Eleventh Circuit affi rmed the district court’s denial of qualifi ed immunity to the offi cers in Oliver. The Court stated, “[T]he force employed was so utterly disproportionate to the level of force reasonably necessary that any reasonable officer would have recognized that his actions were unlawful. The need for force was exceedingly limited.” Id. at 908.

10. The Oliver court did not address the distinction between the dart and drive-stun modes of taser usage, but stated: “Fiorino was using a [taser] which was designed to cause signifi cant, uncontrollable muscle contractions . . . . The [T]aser gun fi res two probes up to a distance of twenty-one feet . . . . These probes are connected to the [T]aser gun by high-voltage insulated wire. When the probes make contact with the target, the [T]aser gun transmits electrical pulses along the wires and into the body of the target, through up to two inches of clothing. The pulses are fi ve seconds in duration, unless the trigger is held down longer than fi ve seconds.” 586 F.3d at 903 (quotation marks and internal citations omitted).

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The Eleventh Circuit’s reasoning can be applied with equal force to the present, closely analogous case. The Eleventh Circuit relied on the facts that “Oliver was not accused of or suspected of any crime, let alone a violent one; he did not act belligerently or aggressively; he complied with most of the offi cers’ directions; and he made no effort to fl ee.” Id. These exact observations can also be made about Allen’s conduct. In Oliver, the court found that “[t]asering the plaintiff at least eight and as many as eleven or twelve times over a two-minute span without attempting to arrest or otherwise subdue plaintiff” was “so plainly unnecessary and disproportionate that no reasonable offi cer could have thought that this amount of force was legal under the circumstances.” Id. For similar reasons, Defendants are not entitled to qualifi ed immunity in this case.

III. Count Two: § 1983 Claim for Excessive Force

Merits

A Fourth A mendment excessive-force cla im necessitates a determination of whether the force used was objectively reasonable. Relevant to this determination is “(1) the need for the application of force, (2) the relationship between the need and amount of force used, and (3) the extent of the injury infl icted.” Vinyard, 311 F.3d at 1347 (citations and internal quotation marks omitted). For the reasons discussed supra, there is suffi cient evidence from which a jury could fi nd that Defendants’ use of force was objectively unreasonable. Summary judgment is therefore denied as to Plaintiffs’ § 1983 claim against Cooks and Harkleroad for excessive force.

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IV. Count: Three: Americans with Disabilities Act Claim

Plaintiffs allege that Defendants Bacon County and the City of Alma failed to comply with the Americans with Disabilities Act (ADA) in that

they failed and refused to provide medical services to Allen because of the fact of his mental illness and/or excited delirium. Allen was, by reason of these disabilities, excluded from and denied the benefi ts of medical care and treatment, and was subjected to discrimination by Bacon County and the City of Alma, through their respective agents and employees.

First Am. Compl. ¶ 18, ECF No. 45.

Plaintiffs must prove three elements to state a claim under the ADA:

(1) that [Allen was] a qualifi ed individual with a disability; (2) that he was either excluded from participation in or denied the benefi ts of a public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) that the exclusion, denial of benefi t, or discrimination was by reason of the plaintiff’s disability.

Bircoll v. Miami-Dade Cnty., 480 F.3d 1072, 1083 (11th Cir. 2007). Defendants concede that there is at least a

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question of fact of whether the fi rst element is satisfi ed -- whether Allen was a disabled individual under the meaning of the ADA. Defendants argue that summary judgment is nevertheless proper on the ADA claim because Allen was not “even potentially discriminated against in violation of the ADA by the County or City.” Mot. Summ. J. 27.

The Eleventh Circuit has allowed a plaintiff to bring an ADA claim arising from an arrest “under the fi nal clause in the Title II statute: that he was ‘subjected to discrimination’ by a public entity, the police, by reason of his disability,” without “enter[ing] the circuits’ debate about whether police conduct during an arrest is a program, service, or activity covered by the ADA.” Bircoll, 480 at 1084. This Court likewise need not determine whether the Defendants’ conduct during the arrest was a “program, service, or activity” as defi ned by the ADA, because Plaintiffs have offered not even a scintilla of evidence to support either the second or third elements of an ADA claim. Plaintiffs’ entire argument on this issue is limited to vague allegations that Allen was “excluded from and denied the benefi ts of medical care and treatment, and was subjected to discrimination” by Defendants. First Am. Compl. ¶ 18, ECF No. 45. In response to Defendants’ Motion for Summary Judgment, Plaintiffs do not even describe the alleged discrimination or exclusion. Instead, they state simply that “[t]he problem is that Cooks and Harkleroad had no patience. They had no accommodation.” Resp. 26. Plaintiffs’ ADA claim cannot survive summary judgment without their having established that some specifi c exclusion, denial of benefi ts, or discrimination occurred. Defendants are therefore entitled to summary judgment on the ADA claim.

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V. Count Four: State-law Claims for Assault and Battery

In Count Four, Plaintiffs sue Cooks and Harkleroad for assault and battery, and the City of Alma for Harkleroad’s actions under the doctrine of respondeat superior. First Am. Compl. ¶ 101, ECF No. 45. Defendants move for summary judgment on Count Four, arguing that (1) Cooks and Harkleroad are entitled to offi cial immunity, and (2) even if the Court fi nds they are not, the level of force they used on Allen was not constitutionally excessive. Mot. Summ. J. 30, 32.

A. Offi cers Cooks and Harkleroad

1. Offi cial Immunity

Under Georgia law, a police offi cer may be personally liable for state-law torts only for discretionary acts performed with malice or an intent to injure. See Campbell v. Goode, 695 S.E.2d 44, 45 (Ga. Ct. App. 2010). Otherwise, the offi cer is entitled to offi cial immunity.

a. Discretionary Acts

Discretionary acts, as opposed to ministerial acts, warrant offi cial immunity. The character of the act the offi cer was performing determines whether the act is deemed ministerial or discretionary. Reed v. DeKalb Cnty., 589 S.E.2d 584, 587 (Ga. Ct. App. 2003). “[A] discretionary act ‘calls for the exercise of personal deliberation and judgment, which entails examining the facts, reaching reasoned conclusions, and acting on them

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in a way not specifi cally directed.’” Id. (citing Harvey v. Nichols, 581 S.E.2d 272, 276 (Ga. Ct. App. 2003)). A ministerial act, on the other hand, “requir[es] merely the execution of a specifi c duty.” Barnard v. Turner Cnty., 701 S.E.2d 859, 862 (Ga. Ct. App. 2010) (quoting Kennedy v. Mathis, 676 S.E.2d 746, 748 (Ga. Ct. App. 2009)). Deciding to carry out a warrantless arrest, as Defendants Cooks and Harkleroad were doing, is a discretionary act. Reed, 589 S.E.2d at 587.

b. Malice or Intent to Injure

In this context, “‘actual malice’ means a deliberate intent to do wrong.” Reed, 589 S.E.2d at 588. Further, that intent must be to cause the specifi c harm suffered. See Campbell, 695 S.E.2d at 46. “[A]ctual malice” does not include “‘“implied malice,” i.e., the reckless disregard for the rights or safety of others.’” Barnard, 701 S.E.2d at 862 n.3 (quoting Murphy v. Bajjani, 647 S.E.2d 54, 60 (Ga. 2007)). To avoid summary judgment, Plaintiffs must show some evidence that Cooks and Harkleroad acted with the deliberate intention to cause the specifi c harm Allen suffered. See id.

Here, accepting Plaintiffs’ version of the facts, there is evidence from which a jury could fi nd that Cooks and Harkleroad acted with actual malice in tasing Allen repeatedly. Based on evidence that Allen was subjected to repeated taser shocks in the drive-stun mode while largely compliant and lying motionless on the ground, a reasonable jury could conclude that Defendants tased Allen to cause the harm suffered by Allen (pain, and

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potentially, death) and thus acted with actual malice. See Hill v. Mull, 5:04-CV-329, 2006 WL 3022280, at *14 (M.D. Ga. Oct. 23, 2006) (fi nding that, based on plaintiff’s testimony, “a reasonable jury could not only infer that [the offi cer’s] use of force was unlawful, it could also infer that [the offi cer’s] unnecessary and excessive force demonstrated a deliberate intent to commit wrongful acts,” and thus denying offi cial immunity); Jackson v. City of Albany, Ga., 49 F. Supp. 2d 1374, 1381 (M.D. Ga. 1998) (fi nding that the evidence viewed in favor of plaintiffs, “[w]hether ultimately persuasive or not, [ ] could certainly support a fi nding that [the offi cer] maliciously intended to use excessive force on [plaintiff]” and denying immunity); see also Campbell, 695 S.E.2d 44 at 46 (fi nding no actual malice where plaintiff actually acknowledged that he did not believe the offi cer intended to break plaintiff’s arm). Therefore, Offi cers Cooks and Harkleroad are not entitled to offi cial immunity on the assault and battery claims.

2. Merits

In Georgia, “the act of intentionally causing actual physical harm to another” constitutes a battery, and “an assault occurs when all the apparent circumstances, reasonably viewed, are such as to lead a person reasonably to apprehend a violent injury from the unlawful act of another.” Everett v. Goodloe, 602 S.E.2d 284, 291 (Ga. Ct. App. 2004) (alterations, internal quotation marks, and footnotes omitted). Even minimal touching will support a claim of assault and battery. Darnell v. Houston Cnty. Bd. of Ed., 506 S.E.2d 385, 388 (Ga. Ct. App. 1998) (citing Jarrett v. Butts, 379 S.E.2d 583 (1989)). As discussed

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supra, the evidence regarding Defendants’ use of force is suffi cient to create a genuine factual question for a jury as to whether Defendants committed the torts of assault and battery against Allen. Summary judgment is therefore denied to Defendants Cooks and Harkleroad on Count Four.

B. The City of Alma

1. Sovereign Immunity

Plaintiffs premise their claim against the City of Alma for assault and battery solely on the actions of Defendant Harkleroad. The City asserts the defense of sovereign immunity. Mot. Summ. J. 33 n.13.

a. Respondeat Superior

Even if the Court had found Harkleroad entitled to offi cial immunity on the underlying claim of assault and battery, immunity is not delegable under Georgia law; Harkleroad’s offi cial immunity would not extend protection to the City from liability. Rodriguez v. Kraus, 619 S.E.2d 800, 803 (Ga. Ct. App. 2005) (citing Gilbert v. Richardson, 452 S.E.2d 476, 264 Ga. 744, 753-54 (Ga. 1994)). The City may, however, raise as a defense its own immunity from suit as a municipality.

b. Grant of Sovereign Immunity

The Georgia Constitution grants sovereign immunity to the State and all its departments and agencies unless

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they have waived it. Ga. Const. art. 1, § 2, para. 9(e); see also id. art. 9, § 2, para. 9 (“The General Assembly may waive the immunity of . . . municipalities ... by law.”) A city may not be held liable for damages for injuries arising from the performance of a governmental function, as opposed to a proprietary or ministerial function. Weaver v. City of Statesboro, 653 S.E.2d 765, 768 (Ga. Ct. App. 2007) (citing O.C.G.A. § 36-33-1(b)); Boone v. City of Columbus, 75 S.E.2d 338, 339 (Ga. Ct. App. 1953). “[I]t is well established that city police offi cers engaged in city police work are performing a governmental function,” Weaver, 653 S.E.2d at 768, and thus the City of Alma has sovereign immunity from claims arising from police work unless it waived that immunity.

c. Waiver

Plaintiffs have not demonstrated that the City waived its immunity. Pursuant to statute, a city may waive sovereign immunity under certain conditions involving the purchase of liability insurance. O.C.G.A. § 36-33-1; see also Campbell, 695 S.E.2d at 46-47. The burden of showing waiver falls on Plaintiffs. See City of Lawrenceville v. Macko, 439 S.E.2d 95, 98 (Ga. Ct. App. 1993), overruled in part on other grounds by Clive v. Gregory, 635 S.E.2d 188 (Ga. Ct. App. 2006); Mot. Summ. J. 33 n.13. Plaintiffs have not met this burden; in fact, they do not address the City’s immunity defense whatsoever. See Resp. The Court fi nds no reason why the City should not be immune from suit. Summary judgment is proper as to Plaintiffs’ assault and battery claims against the City.

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VI. Count Five: State-law Claims for Negligence, Pain and Suffering, and Wrongful Death

In Count Five, Plaintiffs sue Defendants Harkleroad and the City of Alma for negligence, pain and suffering, and wrongful death. First Am. Compl. ¶¶ 104-108, ECF No. 45. Specifi cally, Plaintiffs claim that (1) “Defendant Harkleroad failed to follow proper, recognized procedures with regard to the use of a TASER device,” was “negligent in the use of the TASER on Allen,” and that negligence “resulted in pain and suffering and the death of Allen;” and (2) the City is liable for Harkleroad’s actions under the doctrine of respondeat superior. Id. ¶¶ 105-107.

A. City of Alma

For the reasons stated supra with regard to Count Four, Defendant City of Alma is entitled to sovereign immunity from suit, and thus is entitled to summary judgment on Count Five.

B. Offi cer Harkleroad

1. Negligence

Plaintiffs have offered suffi cient evidence, discussed supra, to defeat Defendant Harkleroad’s claim of offi cial immunity, as well as to defeat summary judgment on the claim that Harkleroad was negligent in the application of his taser to Allen. Summary judgment is therefore denied as to Plaintiffs’ negligence claim.

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2. Pain and Suffering

As “pain and suffering” is not an independent cause of action in Georgia, but simply a phrase relevant to determination of damages, summary judgment is granted as to this claim.

3. Wrongful Death

“An action for wrongful death may be premised upon ‘any negligence which was actionable at common law.’ ” Allrid v. Emory Univ., 303 S.E.2d 486, 488 (Ga. Ct. App. 1983). Because Plaintiffs’ negligence claim survives summary judgment, so too does Plaintiffs’ wrongful death claim.

VII. Count Six: State-law Claims for Violation of O.C.G.A. Sections 42-5-2 and 42-4-4

In Count Six, Plaintiffs bring claims against Defendants Cooks, Harkleroad, and the City of Alma, alleging that “[t]he actions and inactions of the defendants [ ] violated Allen’s affi rmative state law based right of protection against abuse while in custody, and right to receipt of medical care, including but not limited to O.C.G.A. 42-5-2 and O.C.G.A. 42-4-4.” First Am. Compl. ¶ 110, ECF No. 45. Defendants moved for summary judgment on these claims on the grounds that (1) O.C.G.A. § 42-4-4 imposes a duty only upon sheriffs and deputies; (2) O.C.G.A. § 42-5-2 imposes a duty only on the governmental unit having physical custody of a detainee, and (3) no Defendant could be liable under either statute

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because Allen actually received medical attention at the jail. Mot. Summ. J. 34. In their Response, Plaintiffs “agree that O.C.G.A. § 42-4-4 and 42-5-2 applies only to the defendant sheriff and does not oppose the grant of summary judgment as to such issues in favor of Cooks, Harkleroad or the City of Alma.” Resp. 29. As Defendants point out, however, Plaintiffs did not state a claim against Sheriff Foskey in Count Six. Having already amended their Complaint once and reached the summary judgment stage, Plaintiffs cannot now, in a response to a summary judgment motion, assert this claim against a Defendant not previously named in this count.

The Court agrees with Defendants’ arguments about the inapplicability of the cited statutes to the Defendants actually named in Count Six (Cooks, Harkleroad, and the City). O.C.G.A. section 42-4-4 is entitled “Duties of the sheriff [ ]” and enumerates the duties of the sheriff in relation to a jail. O.C.G.A. § 42-4-4. O.C.G.A. section 42-5-2 lists the responsibilities of “the governmental unit, subdivision, or agency having the physical custody of an inmate.” O.C.G.A. § 42-5-2(a). As Defendants note, Allen was taken into custody by Cooks, a Bacon County police offi cer, and transported to the county jail. Mot. Summ. J. 34. Thus, Allen was never in the custody of the City of Alma, and Plaintiffs cannot bring suit against the City under O.C.G.A. section 42-5-2. Plaintiffs have offered no rebuttal of these arguments, but in fact concede summary judgment is proper on these claims. Resp. 29. The Court grants summary judgment on Count Six as to all Defendants.

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CONCLUSION

All claims against Defendants Sheriff Foskey and Chief Taggart are hereby DISMISSED.

Summary judgment is hereby GRANTED as to Plaintiffs’ § 1983 claim for denial of medical care (Count One) against Offi cers Cooks and Harkleroad; American with Disabilities Act claim (Count Three) against Bacon County and the City of Alma; negligence, pain and suffering, and wrongful death claims (Count Five) against the City of Alma; pain and suffering claim (Count Five) against Offi cer Harkleroad; and claims for violation of O.C.G.A. sections 42-5-2 and 42-4-4 (Count Six) against Cooks, Harkleroad, and the City of Alma.

Summary judgment is hereby DENIED as to Plaintiff’s § 1983 claim for excessive force (Count Two) against Cooks and Harkleroad; assault and battery claims (Count Four) against Cooks and Harkleroad; and negligence and wrongful death claims (Count Five) against Offi cer Harkleroad.

SO ORDERED, this 26th day of January, 2011.

/s/ LISA GODBEY WOOD, CHIEF JUDGE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA