              Case: 17-13080    Date Filed: 02/06/2018    Page: 1 of 10


                                                               [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 17-13080
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 2:16-cv-14422-DMM



JILL ALEXANDER,
as Personal Representative of the Estate of Mitchell Brad Martinez, deceased,

                                                   Plaintiff - Appellant,

versus

SHERIFF OF INDIAN RIVER COUNTY, FLORIDA,
Deryl Loar,
CHRISTOPHER SHARKEY,
in his official capacity as a deputy of the Indian River County Sheriff's Office,

                                                   Defendants - Appellees.

                           ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________

                                 (February 6, 2018)
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Before WILSON, JORDAN and DUBINA, Circuit Judges.

PER CURIAM:

      Appellant, Jill Alexander (“Alexander”), as personal representative of

Mitchell Brad Martinez’s estate (“Martinez” or “decedent”), appeals the district

court’s order granting summary judgment to Appellees, Indian River County

Sheriff Deryl Loar (“Sheriff Loar”), and Indian River County Deputy Christopher

Sharkey (“Deputy Sharkey”), on Alexander’s civil rights, negligence and wrongful

death actions. Alexander’s original complaint alleged seven counts: (1) intentional

battery against Deputy Sharkey; (2) negligence against Deputy Sharkey; (3)

negligence against Sheriff Loar; (4) a Section 1983 claim against Deputy Sharkey

for excessive force; (5) a Section 1983 action against Sheriff Loar; (6) a wrongful

death action against Deputy Sharkey; and (7) a wrongful death action against

Sheriff Loar. After Alexander voluntarily dismissed two counts and the district

court dismissed the wrongful death claim against Sheriff Loar, the district court’s

order disposed of the negligence counts against both appellees, the Section 1983

count against Sheriff Loar, and the wrongful death count against Deputy Sharkey.

After reading the parties’ briefs and reviewing the record, we affirm.

                                I. BACKGROUND




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      Martinez appeared for a bond hearing at the Indian River Courthouse, where

the court revoked his bond and remanded him into the custody of the Indian River

County Sheriff’s Office for transport to the Indian River County Jail (“Jail”). An

officer took Martinez to the intake area, where the officer handcuffed Martinez in

the front of his body with a handcuff belt, shackled his legs, and placed him in a

holding cell to await transport to the Jail. Deputy Sharkey arrived at the sally port

in a van to transport Martinez and seven other inmates to the Jail. There was a

video camera recording activities in the sally port area. The recording shows

Deputy Sharkey loading seven shackled individuals in prison uniform into the back

of the van. The recording shows Martinez walking out of the holding area to the

side door of the van, which opens into the forward compartment of the van. As

Deputy Sharkey opens the door to the forward compartment, the recording freezes.

After a 14 second delay, another video camera from the holding area shows

Deputy Sharkey walking back inside the holding area. The sally port video

resumes and shows Deputy Sharkey exiting the holding area with a female inmate

and escorting her to another transport vehicle. Neither video records anyone else

entering or exiting the sally port area via the holding area before the van left the

courthouse.




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      Although the front compartment of the van contains several lap belts,

Deputy Sharkey did not restrain Martinez. Per usual practice, the transport

deputies do not buckle the prisoners but give them the option of buckling

themselves. Deputy Sharkey could not recall if he mentioned this option to

Martinez. The drive from the courthouse to the Jail took approximately eight

minutes and occurred without any stops or detours. During the drive, Deputy

Sharkey did not hear Martinez make any noises of distress and did not hear any

inmates in the back compartment making noise to get his attention. Deputy

Sharkey could not see Martinez through the window into the front compartment

because several years prior, for security reasons, someone in the Sheriff’s Office

had taped a black plastic bag over the window to prevent inmates from seeing

where they were going. Deputy Sharkey thought this was a departmental decision.

      Four of the seven inmates in the back compartment averred that they heard

Martinez coughing and hacking during the ride and that it sounded like Martinez

was struggling to breathe. The other three inmates stated that they did not hear any

noises from the front compartment. No inmate made an attempt to get Deputy

Sharkey’s attention or to alert him to a potential problem. Upon arriving at the

Jail, Deputy Sharkey first escorted the seven inmates inside. When he opened the

door to the front compartment, he saw Martinez halfway seated on the floor area,


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slumped over and making gurgling noises. After attempting to rouse Martinez,

Deputy Sharkey called for assistance. With the help of another deputy, Deputy

Sharkey performed CPR on Martinez until medical staff arrived. At that time,

there were no cuts, abrasions, scratches or bleeding on Martinez.

      After transport to the Indian River County Medical Center Emergency

Room, a nurse conducted a physical examination of Martinez and did not note any

marks around his neck. The next morning, a nurse noticed two reddish lines

around Martinez’s neck, bruising on his neck, but no bleeding. Several days later,

Martinez died. The chief medical examiner conducted an autopsy and opined that

the cause of death was cardiac dysrhythmia due to adverse drug reaction. Two

months later, Martinez’s mother hired Dr. William Anderson, M.D., to conduct an

autopsy. He opined that the cause of death was hypoxic encephalopathy, diffuse,

post-respiratory arrest secondary to blunt force trauma, neck. Dr. Anderson

observed abrasions extending circumferentially, involving most of the neck, and a

fractured larynx with associated hemorrhage. He opined that his injuries most

likely resulted from moving around or being thrown around the van because he

was not restrained. Martinez’s mother also hired a biomechanical engineer who

agreed with Dr. Anderson’s opinions.

                                II. DISCUSSION


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      Alexander contends that the district court erred in granting summary

judgment to the Appellees because (1) it failed to consider Alexander’s vicarious

liability allegations in the complaint; (2) it found that the facts implicate

operational functions, not discretionary ones; (3) it found that Deputy Sharkey’s

actions were not in willful and wanton disregard of Martinez’s safety and well-

being; and (4) it held that no constitutional violation existed to support a Section

1983 claim. Based upon a de novo review, we conclude none of Alexander’s

arguments have merit. See Quik Cash Pawn & Jewelry, Inc. v. Sheriff of Broward

Cnty., 279 F.3d 1316, 1319 (11th Cir. 2002) (“We review the trial court’s grant of

summary judgment de novo, viewing the record and drawing all reasonable

inferences in the light most favorable to the non-moving party.”).

      First, we conclude that the district court did not err by failing to consider a

vicarious liability allegation because Alexander did not plead such a claim. At

summary judgment, the only remaining state law claim against Sheriff Loar in his

official capacity was a state law negligence count premised on a theory of

negligent training and supervision. There was no alleged cause of action for

negligence based upon vicarious liability. Similarly, the district court properly

refused to revive Alexander’s wrongful death count against Sheriff Loar when it

found that Deputy Sharkey did not act with bad faith, malicious purpose or with


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wanton or willful disregard. The district court dismissed this claim at the motion

to dismiss stage, and the claim was not pled in the alternative to the wrongful death

claim against Deputy Sharkey. Hence, the district court properly did not revive the

wrongful death count against Sheriff Loar. See Miccosukee Tribe of Indians of

Florida v. United States, 716 F.3d 535, 559 (11th Cir. 2013) (stating that a district

court is barred from amending a plaintiff’s claim on summary judgment).

      Second, although Alexander challenges the district court’s judgment with

regard to her claims against Sheriff Loar on her theory of negligent training and

negligent supervision of Deputy Sharkey as it related to the Sheriff’s Office’s

policy of transporting inmates within its custody, she does not mention in her

appellate brief any argument on the negligent supervision claim. As such, she has

waived any challenge to that ruling. See United States v. Ardley, 242 F.3d 989,

990 (11th Cir. 2001) (reaffirming circuit rule that the court does not consider issues

not timely raised in the briefs). Hence, we affirm the district court’s disposition of

that claim.

      As to the negligent training claim against Sheriff Loar, the district court

properly found that based on the undisputed facts, there was no evidence that the

Sheriff’s Office negligently implemented its training on the transport of those in its

custody. Alexander asserts on appeal that the Sheriff’s decision with regard to the


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transportation of inmates is an operational function, not a discretionary one, and

therefore, Sheriff Loar is not entitled to sovereign immunity under Florida law.

See Mercado v. City of Orlando, 407 F.3d 1152, 1162 (11th Cir. 2005) (waiver of

sovereign immunity only applies to operational acts). However, Alexander

challenges the reasonableness of basic policy decisions made by Sheriff Loar

regarding what to include in the training of the deputies as it related to the safe and

humane transport of persons in its custody. This is “clearly an exercise of

governmental discretion regarding fundamental questions of policy and planning.”

Lewis v. City of St. Petersburg, 260 F.3d 1260, 1266 (11th Cir. 2001).

Accordingly, we conclude that the district court’s grant of summary judgment in

favor of Sheriff Loar on the negligent training claim was proper.

      Third, we conclude that the district court properly granted summary

judgment to Deputy Sharkey based on statutory immunity pursuant to Florida

Statute § 768.28(9). Deputy Sharkey is immune from suit unless he acted in bad

faith, or with malicious purpose, or with willful and wanton disregard of human

rights, safety or property. See O’Boyle v. Thrasher, 638 F. App’x 873, 879 (11th

Cir. 2016) (noting that Florida courts have held that the language in the statute

“connotes conduct much more reprehensible and unacceptable than mere

intentional conduct” (citation omitted)). On appeal, Alexander contends that


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Deputy Sharkey’s failure to hear Martinez through the black opaque obstruction

was a wanton and willful disregard of Martinez’s safety. This argument is

meritless. Any obstruction to sight for Deputy Sharkey had no bearing on his

ability to hear any commotion. Furthermore, Alexander proffers no evidence to

show that Deputy Sharkey performed any action that rose to the level of wanton or

willful disregard as to Martinez’s safety, nor that any causal nexus exists between

any action of Deputy Sharkey and Martinez’s injury, as the injury and subsequent

death were not reasonably foreseeable under the circumstances. Accordingly, we

conclude that the district court properly granted summary judgment to Deputy

Sharkey on this claim.

      Fourth, we conclude that the district court properly granted summary

judgment in favor of Sheriff Loar on the Section 1983 claim. The only

constitutional claim Alexander alleged was a claim for excessive force against

Deputy Sharkey. Eventually, Alexander abandoned that claim, which meant that

she had no underlying constitutional violation to form the basis for the Section

1983 claim against Sheriff Loar in his official capacity. Alexander asserted a new

theory at the summary judgment stage, which is improper. See Gilmour v. Gates,

McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (stating that at summary

judgment stage, the proper procedure for a plaintiff to assert a new claim is to


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amend the complaint). Although the district court acknowledged that the

complaint does not allege a Section 1983 claim against Sheriff Loar based on the

Eighth Amendment, it analyzed the claim on the merits and properly denied it.

The record is devoid of any evidence that Deputy Sharkey acted with deliberate

indifference in transporting Martinez to the Jail. The district court properly found

that this claim fails as a matter of law.

      For the foregoing reasons, we affirm the district court’s grant of summary

judgment to Deputy Sharkey and Sheriff Loar.

      AFFIRMED.




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