                                                           [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                                  FILED
                                                         U.S. COURT OF APPEALS
                         ________________________          ELEVENTH CIRCUIT
                                                               MARCH 7, 2008
                               No. 06-15616                 THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                      D. C. Docket No. 04-14182-CV-DLG

DAVID PATTON KING,

                                                 Plaintiff-Appellee,
                                     versus

BRUCE REAP,
in his individual and official capacities
as Deputy Sheriff of Indian River County,
ERIN BURKE,
in her individual and official capacities
as Deputy Sheriff of Indian River County,
et al.,

                                            Defendants-Appellants.
                         ________________________

                  Appeals from the United States District Court
                      for the Southern District of Florida
                        _________________________

                               (March 7, 2008)

Before ANDERSON, WILSON and PRYOR, Circuit Judges.
PER CURIAM:

      Defendants Bruce Reap, Erin Burke, Robert Foress, William Teague, and

Anthony Cosalo appeal the district court’s denial of their motion for summary

judgment. Appellants, all deputies with the Indian River Sheriff’s Department,

moved for summary judgment based on qualified immunity.

      Plaintiff-Appellee David King brought suit under 42 U.S.C. § 1983,

alleging that the Defendants had violated his constitutional rights by using

excessive force against him during his arrest and/or failing to intervene in the use

of excessive force. He also alleged that they showed deliberate indifference to his

serious medical needs at the scene of the arrest.

      The district court held that, taking the facts in the light most favorable to

King, the Defendants used excessive force or failed to intervene when excessive

force was being used. Under King’s recitation of the facts, he was assaulted by

Deputy Stoll and another deputy that he could not see; the rest of the named

deputies watched and did nothing. King testified that he was stopped by Stoll for

running a stop sign. Upon stopping his car, King placed a baggie containing crack

cocaine in his mouth. When Stoll attempted to ask King questions, King refused

to talk or identify himself. Stoll instructed King to open his mouth but King

refused, so Stoll handcuffed King behind his back. After being handcuffed, King

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still refused to comply with Stoll’s order so Stoll allegedly grabbed King’s mouth

and slammed him to the ground. King testified that Stoll beat him in the back with

a flashlight while attempting to open his mouth. It was during this time, when

King was on the ground on his back with Stoll on his legs, that an unidentified

deputy arrived on the scene. King testified that the two deputies ground his face

into the ground while trying to pry his mouth open. One of the two pepper-

sprayed him and then forced a metal object into King’s mouth, which sliced the

interior of his mouth and tongue, chipped a tooth, and caused swelling in his lips.

      Paramedics arrived to treat King after the cocaine was removed but one of

the Defendants instructed them to leave before any first aid was administered.

King was then taken to the hospital, where he declined treatment, allegedly

because he feared that if he told the hospital staff what happened he would be

treated worse by the Defendants. King alleges that Stoll did not inform the jail or

put in the arrest report that he had taken King to the hospital. He also alleges that

Stoll omitted from the arrest report that the paramedics arrived, that pepper spray

was used, or that a metal tool was used; the report falsely stated that King spat the

cocaine out. Several days later, an examination at the jail revealed that King had

two broken ribs; he asserts he also suffered soft tissue damage, severe bruising of

his cheeks and face, various scratches and bruises, and the effects of the pepper

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spray.

         We review de novo a trial court's denial of a motion for summary judgment

on qualified immunity grounds. Bennett v. Hendrix, 423 F.3d 1247, 1249 (11th

Cir. 2005). Summary judgment is appropriate only “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact.” Id. (quoting

Fed.R.Civ.P. 56). Taken in the light most favorable to the party asserting injury,

we first ask whether a constitutional violation occurred; we then ask whether the

violation was already clearly established by the law at the time. Saucier v. Katz,

533 U.S. 194, 121 S.Ct. 2151, 2156 (2001). A narrow exception exists to the rule

requiring particularized case law to establish clearly the law in excessive force

cases. When an excessive force plaintiff shows “that the official’s conduct lies so

obviously at the very core of what the Fourth Amendment prohibits that the

unlawfulness of the conduct was readily apparent to the official, notwithstanding

the lack of caselaw,” the official is not entitled to the defense of qualified

immunity. Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 926 (11th Cir.

2000).

A. Excessive Force and the Fourth Amendment

         We first examine whether the Appellants’ use of force was excessive and

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violated the Fourth Amendment. The standard for whether the use of force was

excessive under the Fourth Amendment is one of “objective reasonableness.”

Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 1867-68, 104 (1989). “The

‘reasonableness’ of a particular use of force must be judged from the perspective

of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight.” Id. at 1872.

      Because “[t]he test of reasonableness under the Fourth Amendment is not

capable of precise definition or mechanical application,” id. at 1872 (quoting Bell

v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861 (1979)) (alteration in original), we must

“slosh our way through the factbound morass of ‘reasonableness.’” Scott v. Harris,

__ U.S. __, 127 S.Ct. 1769, 1778 (2007). Therefore, determining whether “the use

of a particular type of force in a particular situation” is “reasonable” in the

constitutional sense requires a court to “balance the nature and quality of the

intrusion on the individual's Fourth Amendment interests against the importance

of the governmental interests alleged to justify the intrusion.” Id. at 1777, 1778.

The Court has also held that lower courts should factor into the calculus of

reasonableness the severity of the crime, whether the suspect posed an immediate

threat to the safety of the officers or others, and whether the suspect was actively

resisting or attempting to escape. Graham, 490 U.S. at 396, 109 S.Ct. at 1872.

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      Appellant Reap argues that because King had put a baggie of cocaine in his

mouth, the amount of force that the deputies used to remove it was not excessive.

He cites cases from other circuits where courts have held that a certain amount of

force is acceptable when a suspect is concealing drugs within his body. In each of

those cases he cites, however, the amount of force used was significantly less than

that allegedly used here and does not affect the reasonableness inquiry that we

must make.

      Here, when we examine the facts as alleged by King, the amount of force

used was not reasonable. Unlike the cases cited by Appellants, King was not

merely “manhandled”: he was beaten, while handcuffed, to the extent that two or

possibly three of his ribs were broken. Furthermore, according to King, he was

not attempting to escape or violent; indeed, King was charged with nonviolently

resisting arrest. This also was not a case where a split-second decision had to be

made: the beating, according to King, took at least five minutes.

      Appellant Consalo argues that the court below erred because it did not

analyze whether King’s testimony proves that Consalo’s precise conduct violated

King’s constitutional rights. However, this Court does not require that each

individual defendant’s actions must be analyzed in an excessive force case.

Velazquez v. City of Hialeah, 484 F.3d 1340, 1342 (11th Cir. 2007) (rejecting

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award of qualified immunity because plaintiff did not know which officer

administered the beating; who administered the beating, and whether or not it was

excessive are questions for the jury).

      There is no question that the Appellants had fair warning that their actions

violated King’s cnostitutional rights. The beating, as described by King, falls

within “the core of what the Fourth Amendment prohibits”: a severe beating of a

restrained, non-resisting suspect. See generally Vinyard v. Wilson, 311 F.3d 1340

(11th Cir. 2002).

B. Failure to Intervene

      The Appellants argue that they are entitled to qualified immunity on the

claim of failure to intervene in the use of excessive force against King. An officer

can be liable for failing to intervene when another officer uses excessive force.

Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 924 (11th Cir. 2000) (citing

Ensley v. Soper, 142 F.3d 1402, 1407-08 (11th Cir. 1998). This liability,

however, only arises when the officer is in a position to intervene and fails to do

so. See Ensley, 142 F.3d at 1407 (“[F]or an officer to be liable for failing to stop

police brutality, the officer must be in a position to intervene[.]”).

      In Priester, we held that two minutes of a dog biting a suspect was long

enough for another officer to intervene. Here, King testified that the deputies who

                                           7
arrived on the scene later were there for his arrest and beating; each of the deputies

testified that they witnessed the beating. He also alleged that the beating took

place for about twenty minutes. Therefore, each Appellant had the opportunity to

observe that a handcuffed, non-violent suspect was being beaten but failed to

intervene, violating his constitutional rights.



C. Deliberate Indifference Claim

       The Appellants argue that the district court should have granted them

qualified immunity on King’s deliberate indifference to medical needs claim.

King testified that an ambulance was called to the scene of his arrest but that the

Appellants sent the ambulance away without letting King speak to them.

Furthermore, King argues that although the deputies later took him to the hospital,

this did not constitute providing prompt attention to his medical needs as required

by our caselaw. Additionally, their purpose was to have him cleaned up, not

treated, as demonstrated by the fact that they did not report the hospital visit in

their report of the arrest.

       This Court has held that the denial of prompt and proper medical care to a

pretrial detainee violates the detainee’s due process rights. Thomas v. Town of

Davie, 847 F.2d 771, 772 (11th Cir. 1988). In that case, the plaintiff argued that he

                                           8
was demonstrably injured and yet the police did not provide him with medical

care, although they handcuffed him, administered a negative sobriety test, and

transported him to the jail. Once there, he was released onto the street outside of

the Sheriff’s Office after he posted bond; he collapsed and was injured. Here,

King had been pepper-sprayed and according to Indian River County Sheriff

Officer policy, should have been decontaminated. However, the ambulance,

although summoned, was sent away without a chance to examine or assist King.

Furthermore, the beating and spray had produced on King a swollen cheek,

swollen and severely bloodshot eyes, a bruised face, lacerations in his mouth,

chipped teeth, soft tissue swelling, and broken ribs. While the broken ribs were

not visible to a lay person, the other injuries were apparent and it is reasonable to

expect that someone subjected to a twenty-minute beating would be in need of

medical attention. Additionally, the very summoning of the ambulance

demonstrates that the Appellants knew that King was in need of medical attention.

However, the sending away of the ambulance and the resulting delay in medical

attention did violate King’s constitutional rights, as demonstrated in Thomas.

      The decision of the district court is

AFFIRMED.




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