Christopher Wheat v. Officer J. Day

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 20-14142
Non-Argument Calendar
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D.C. Docket No. 3:18-cv-00097-CDL-CHW

CHRISTOPHER WHEAT,

Plaintiff - Appellee,

versus

OFFICER JEFF DAY,
Walton County Sheriff's Department,

Defendant - Appellant,

OFFICER J MOUTON,
Shield No. 4616, Walton County Sheriff's Department, et al.,

Defendants.

________________________

Appeal from the United States District Court
for the Middle District of Georgia
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(July 2, 2021)
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Before WILSON, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM:

Deputy Sheriff Jeff Day appeals the denial of his motion for summary

judgment in this 42 U.S.C. § 1983 action against him by plaintiff Christopher

Wheat. The district court denied summary judgment as to Day’s affirmative

defense of qualified immunity. Since no reversible error has been shown, we

affirm the district court.

On April 15, 2018, Wheat—a pretrial detainee at the Walton County Jail—

asked to use the shower so that he could apply therapeutic shampoo to his skin to

treat his eczema. An unidentified officer refused Wheat’s request. Because his

skin was “scratching and burning,” Wheat used the sink in his room to apply the

shampoo, which resulted in the sink overflowing. After Day received reports that

Wheat had flooded his room and caused a commotion among the other detainees,

five officers, including Day, approached Wheat’s room. Day alleges that Wheat

was holding an unknown object and ran away with his back to Day when Day

entered the room. Wheat offers a different version—that he was reading with his

back to the door. But it is undisputed that Day then shot Wheat in the back with

his taser without warning. Wheat was taken to the medical department, where the

taser prongs were removed and he was cleared to return to his room. Day later

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explained in his incident report that he used the taser against Wheat “for kicking on

the door and flooding his room causing the entire cell to almost incite a riot.”

Wheat filed a 42 U.S.C. § 1983 action against Day for using excessive force

in violation of the Fourteenth Amendment’s Due Process Clause. Day moved for

summary judgment, claiming entitlement to qualified immunity. The district court

adopted the magistrate judge’s report and recommendation—which stated that

there was “a triable issue remaining as to Day’s use of a taser upon [Wheat],” and

“[a] reasonable jury . . . could find that [] Day’s actions violated [Wheat]’s

constitutional rights”—and denied Day’s motion, finding that Day was not entitled

to qualified immunity at the summary-judgment stage. Day appeals, arguing that

denial was improper as he did not violate a clearly established constitutional right.1

II.

We review the district court’s denial of qualified immunity at the summary-

judgment stage de novo, viewing all facts and making all reasonable inferences in

the light most favorable to the nonmoving party. Tinker v. Beasley, 429 F.3d 1324,

1326 (11th Cir. 2005) (per curiam).

1
The denial of a motion for summary judgment on qualified-immunity grounds is immediately
appealable under the collateral-order doctrine to the extent that the denial turns on a question of
law. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). Although the adopted report and
recommendation stated that it was denying summary judgment in part because there was a triable
issue of fact, Day alleges that his conduct did not constitute a violation of a clearly established
right—a question of law reviewable on appeal. See Bussinger v. City of New Smyrna Beach, 50
F.3d 922, 924–25 (11th Cir. 1995). Thus we have jurisdiction over this appeal.
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Construing the facts in favor of Wheat, we find that Day is not entitled to

summary judgment on the basis of qualified immunity. Qualified immunity

protects government officials performing discretionary functions “from liability for

civil damages insofar as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.” See

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). As an initial matter, it is

undisputed that Day was acting within his discretionary authority. That means we

are left to determine if Day violated a constitutional right, and if that right was

clearly established at the time of his alleged misconduct.

An officer uses excessive force in violation of the Fourteenth Amendment

when his use of force is objectively unreasonable. Kingsley v. Hendrickson, 576

U.S. 389, 391–92 (2015).2 We judge objective reasonableness by considering six

nonexclusive factors: (1) “the relationship between the need for the use of force

and the amount of force used”; (2) “the extent of the plaintiff’s injury”; (3) “any

effort made by the officer to temper or to limit the amount of force”; (4) “the

severity of the security problem at issue”; (5) “the threat reasonably perceived by

2
In Patel v. Lanier County, we determined that, in light of Kingsley, the Fourteenth Amendment
objective-reasonableness test is analogous to the Fourth Amendment objective-reasonableness
test. 969 F.3d 1173, 1182 (11th Cir. 2020); accord Piazza v. Jefferson County, 923 F.3d 947,
952–53 (11th Cir. 2019) (“[I]nasmuch as it entails an inquiry into the objective reasonableness of
the officers’ actions, the Fourteenth Amendment standard has come to resemble the test that
governs excessive-force claims brought by arrestees under the Fourth Amendment.”). Therefore,
both Fourth and Fourteenth Amendment excessive-force jurisprudence guide our analysis.
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the officer”; and (6) “whether the plaintiff was actively resisting.” Id. at 397. In

making this determination, we take into account what a reasonable officer would

have known at the time of the incident. Id.

Accepting as true Wheat’s account of the facts, all but one of the Kingsley

factors weighs in Wheat’s favor. First, the use of force was disproportionate to its

need. In fact, the allegations establish that no force was necessary. Wheat states

that he had his back to his cell door and did nothing to provoke Day in the

moment. Next, Day apparently made no effort to temper the amount of force used.

He gave no instructions or orders. He never attempted to deescalate the situation.

And he never even gave Wheat a warning that if he failed to comply with Day’s

instructions, Day would need to resort to the use of force to control the situation.

Finally, at the time of the incident, there does not appear to have been a reasonably

perceived security problem or threat, nor was Wheat actively resisting. Wheat was

confined in his cell when Day entered. Upon Day’s entrance, Wheat was

nonresistant and nonbelligerent. Tasing Wheat was not preventative or defensive.

It was punitive if, as Day admitted, it was a response to Wheat’s prior conduct.

Only the second Kingsley factor—the extent of Wheat’s injury—weighs in

Day’s favor. But with an overwhelming number of Kingsley factors weighing

against Day, we find that Day’s use of the taser constituted excessive force. With

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that in mind, the next question is whether the law governing this case was clearly

established at the time of the alleged violation.

The law is clearly established when a reasonable officer would have “fair

warning” that his conduct would violate a constitutional or statutory right. Coffin

v. Brandau, 642 F.3d 999, 1013 (11th Cir. 2011) (en banc). “[F]or decades our

decisions have embraced and reiterated the principle that an officer may not

continue to use force after a detainee has clearly stopped resisting.” Piazza v.

Jefferson County, 923 F.3d 947, 955 (11th Cir. 2019). We have, for example,

declined to extend qualified immunity to officers who pepper sprayed a detainee

who was obeying commands, Danley v. Allen, 540 F.3d 1298, 1309 (11th Cir.

2008), abrogated on other grounds by Kingsley, 576 U.S. 389, punched a

handcuffed suspect in the stomach, Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th

Cir. 2008), and tased a nonviolent suspect, Fils v. City of Aventura, 647 F.3d 1272,

1288–90 (11th Cir. 2011). See Piazza, 923 F.3d at 955–56 (recent opinion finding

that these cases put officer on notice that “tasing an already-tased, incapacitated,

incontinent, and unresisting detainee” violated the Fourteenth Amendment). In

light of these cases, we can say with confidence that the law put Day on notice that

his alleged conduct—tasing a nonresistant, nonbelligerent detainee—violated the

Fourteenth Amendment. Accordingly, we affirm the district court’s denial of

summary judgment.

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AFFIRMED.