              Case: 18-12461      Date Filed: 12/18/2018   Page: 1 of 13


                                                               [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 18-12461
                              Non-Argument Calendar
                            ________________________

                        D.C. Docket No. 0:17-cv-61156-JEM


JOSE CORTES,

                                                                   Plaintiff-Appellee,

                                         versus

BROWARD COUNTY, FLORIDA,
a subdivision of the State of Florida, et al.,

                                                                           Defendants,

ANTONE BRADLEY,
a Broward County Sheriff’s Office Detention Deputy, in his individual capacity,
JEFFREY LEANDRE,
a Broward County Sheriff’s Office Detention Deputy, in his individual capacity,
MCMORISS MAGLOIRE,
a Broward County Sheriff’s Office Detention Deputy, in his individual capacity,
 SCOTT SMALL,
a Broward County Sheriff’s Office Sergeant, in his individual capacity,
GERMAIN MCKENZIE,
a Broward County Sheriff’s Office Detention Deputy, in his individual capacity,

                                                              Defendants-Appellants.
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                           ________________________

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

                                (December 18, 2018)

Before MARCUS, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.

PER CURIAM:

      Officers Antone Bradley, Jeffrey Leandre, McMoriss Magloire, Scott Small,

and Germain McKenzie of the Broward County Sheriff’s Office appeal the denial

of qualified immunity from Jose Cortes’s complaint of excessive force, 42 U.S.C.

§ 1983, and battery under Florida law. Cortes’s complaint stems from his

placement in a holding cell following his arrest for a drug offense. Cortes alleged

that the officers unjustifiably struck and beat him after he insulted a female intake

officer. The district court denied the officers’ motions for summary judgment. We

affirm.

                                I. BACKGROUND

      On April 29, 2015, officers of the Hollywood Police Department arrested

Cortes for possessing cocaine and transported him to the central booking facility

operated by the Broward County Sheriff’s Office. While Cortes was using the

telephone, his call was disconnected suddenly. Cortes became agitated and referred




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to a female intake officer as a “b---h.” Magloire overheard Cortes’s remark and

escorted him to a holding cell.

      The parties dispute whether the officers used unjustified force against Cortes

inside his holding cell. Cortes alleged that, during the span of two to three minutes,

he was subjected to punches, kicks, and being sprayed with pepper foam.

According to the officers, Cortes struck Bradley, who responded by punching

Cortes two or three times, Bradley and Magloire wrestled Cortes to the floor while

trying to restrain him with handcuffs, and Leandre sprayed pepper foam on

Cortes’s face once to subdue him.

      A Florida grand jury returned a two-count indictment against Cortes that

charged him with possessing cocaine, Fla. Stat. §§ 893.03(2)(a)4, 893.13(6)(a), and

“knowingly commit[ting] a battery upon Antone Bradley, . . . [by] actually and

intentionally touch[ing] or strik[ing] [him] against his will, . . . [when Cortes] knew

that Antone Bradley was a law enforcement officer,” id. §§ 784.03(1),

784.07(1)(d), 784.07(2)(b). Cortes pleaded nolo contendere to both charges. Cortes

received a sentence of 18 months of probation under the supervision of the

Department of Corrections.

      Cortes later filed a complaint against the officers. He alleged that, “[o]nce

inside the holding cell, Magloire, without warning or provocation punched Cortes

three (3) times in the face.” Cortes also alleged that McKenzie, Leandre, and Small


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collectively “kicked and punched Cortes,” “forcibly slammed [him] into the metal

benches and the floor,” and “stripped [him] of all of his clothing and pepper-

sprayed [him] in . . . his face and genitals.” Cortes testified that he never resisted

the officers or moved his arms in an aggressive manner, that he sat down on a

bench after being punched by Magloire, that he was seated or standing when the

other officers began their assault, and that he did not “know what officers”

committed each allegedly unlawful act because “they all grabbed him at once and

started striking,” he was lying on the floor in “the fetal position,” and the blood

flowing from the wounds on his face impaired his vision.

      The officers moved for summary judgment based on qualified immunity.

McKenzie argued that Cortes’s claims of excessive force and battery failed because

he never identified a specific use of force by or injury that the deputy caused and,

in the alternative, that he was immune from suit based on the use of reasonable

force to secure Cortes in the holding cell. Magloire, Bradley, Leandre, and Small

filed a joint motion and argued that, in the light of Cortes’s plea to battery, his

claims of excessive force and battery against Bradley, Magloire, and Leandre were

barred by Heck v. Humphrey, 512 U.S. 477 (1994), and collateral estoppel; that

Bradley, Magloire, and Leandre were immune from suit based on their response “to

a fast developing and very quick incident”; that Cortes’s claims failed for lack of

facts identifying the unlawful acts of each officer as required to defeat their


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defenses of qualified immunity; that Leandre was immune from suit because he

acted in reliance on Bradley’s initial determination that force was necessary to

secure Cortes; and that Cortes’s claims against Small failed because he “did not use

force according to” his fellow officers.

      Cortes argued that a material dispute of fact existed about whether the

officers’ actions violated his constitutional right to be free from excessive force.

Cortes submitted an affidavit that described each officer’s participation in the

incident. Cortes averred that his “recollection of the events [had] . . . been

refreshed” after he “had an opportunity to re-review the surveillance video

recordings” and “to review, for the first time, portions of the videotaped

depositions from [the] Defendants.” Cortes averred that “Bradley was the first law

enforcement officer to physically strike [him] inside Holding Cell #1 by punching

[him] multiple times in [the] face without provocation.” Cortes also stated that he

was “grappl[ed], punche[d], and kick[ed]” first by Magloire and later by Bradley,

McKenzie, and Small, which was followed by being “sprayed [in his] face and

body with pepper foam” by Leandre.

      The district court denied the officers’ motions for summary judgment. The

district court ruled that the officers’ “use of force . . . was objectively

unreasonable” and violated Cortes’s “Fourteenth Amendment right to be free from

excessive force.” The district court applied the factors in Kingsley v. Hendrickson,


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135 S. Ct. 2466, 2473 (2015), and determined that “the amount of force used was

vastly disproportionate to the need for force”; Cortes’s injuries were “substantial”

and included “multiple abrasions and wounds to the upper chest, arms, . . . knee

and lower leg,” lacerations on the forehead that required sutures, and “significant

bruising and swelling in the eye and cheek area”; Bradley employed “immediate

and sudden force” without “attempt[ing] to temper or limit the amount of force . . .

[to] address[] the situation”; and, accepting Cortes’s version of events, “[t]here

[was] no evidence he posed a physical threat to any jailhouse employee . . . [or]

actively resisted the defendants’ instructions.” The district court also determined

that the officers “‘step[ped] over the line’ of constitutionally permissible conduct

by using more force than [was] reasonably necessary in [the] existing situation, Ort

v. White, 813 F.2d 318, 325 (11th Cir. 1987),” when Cortes “was punched and

thrown to the floor of a holding cell after making an offensive verbal remark to a

jail employee” and, while “lying prone on the floor, was kicked and stomped upon

despite lack of resistance or display of any threating [sic] behavior.” The district

court decided that “[t]he degree of initial force used by Bradley was objectively

unreasonable . . . and despite the fact that any (unreasonably) perceived need for

that force had completely subsided by the time [Cortes] was secure on the floor of

the holding cell, the defendants continued to deploy substantial force against him

. . . or they stood by while others continued to apply substantial force.”


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      The district court ruled that the “application of collateral estoppel [was]

improper” because Cortes’s “prior conviction for battery upon Deputy Bradley [did

not] necessarily resolve[] the question of whether Deputy Bradley—who was the

target of Plaintiff’s criminal conduct—used force beyond that reasonably necessary

under the circumstances in response to that conduct.” The district court also ruled

that “[t]he ‘fellow-officer rule, [which] allows an arresting officer to rely on

information supplied by fellow officers to effectuate an arrest” did not provide “an

absolute defense to [Cortes’s] failure to intervene claims . . . .” and the deputies

who entered the cell after “Bradley’s initial use of force” had “an obligation to

independently assess the need for the continued[] application of substantial force

against a prone, non-resisting pretrial detainee.” Because “the officers later

entering had an opportunity to observe at least some of the excessive force,” the

district court determined that “the evidence raise[d] disputed issues of material fact

as to whether they had the ability and a realistic opportunity to stop it.”

                           II. STANDARD OF REVIEW

      We review de novo the denial of summary judgment based on qualified

immunity. Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002). Summary

judgment is appropriate when the evidence establishes that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(a). To make that determination, we construe all facts and


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draw all reasonable inferences from the evidence in the light most favorable to the

nonmoving party. Lee, 284 F.3d at 1190.

                                 III. DISCUSSION

      The officers raise several arguments about the denial of their motions based

on qualified immunity. McKenzie and Small argue that the district court erred by

crediting Cortes’s affidavit, which contradicted his earlier statements about the

incident. McKenzie and Smalls also argue that their roles in the incident, if any,

were minimal and that their fellow officers’ use of force was not excessive in the

light of their testimonies that Cortes instigated and then perpetuated the use of

force. Magloire, Bradley, and Scott argue that Cortes’s conviction bars his claims

for excessive force and for battery and establishes that their use of force was

reasonable. Leandre argues that he is immune from suit because his act of

dispensing pepper spray did not constitute the use of excessive force. These

arguments fail.

      The district court did not err by refusing to disregard Cortes’s affidavit. To

disregard an affidavit as a sham, the affidavit must “merely contradict[], without

explanation, previously given clear testimony.” See Van T. Junkins and Assocs. v.

U.S. Indus., 736 F.2d 656, 657 (11th Cir. 1984). To be sure, Cortes’s affidavit

contradicted his earlier testimony that he could not identify what unlawful act each

officer committed. But Cortes explained that his “recollection of the events [had]


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. . . been refreshed” after he “had an opportunity to re-review the surveillance

video recordings” and “to review, for the first time, portions of the videotaped

depositions from [the] Defendants.” “Variations in [Cortes’s] testimony and [his]

failure of memory . . . create an issue of credibility as to which part of the

testimony should be given the greatest weight if credited at all,” which is an issue

for a jury to resolve. See Tippens v. Celotex Corp., 805 F.2d 949, 954 (11th Cir.

1986); see also Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1154 (11th Cir.

2012) (stating that a district court is prohibited from weighing conflicting evidence

or making credibility determinations). And the affidavit did not, as McKenzie

argues, “baldly repudiate” Cortes’s earlier testimony. Cortes’s averment that he was

“grappl[ed], punche[d], and kick[ed]” by McKenzie, Bradley, and Small, is not

irreconcilable with his testimony that he recognized McKenzie’s “face in the mix

of everybody that was attacking [him]” and that he could not distinguish the

officers’ actions because “they all attacked [him] at once” and after he “was taken

down, [he] just [saw] different people’s feets [sic] and hands flying in hitting

[him].”

      The district court also did not err by denying McKenzie’s motion for

summary judgment. A material factual dispute exists about whether McKenzie

participated in the use of force against Cortes. Cortes alleged, testified, and averred

that McKenzie played a role in the incident. McKenzie denied any involvement in


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the incident and insisted that, even if he had participated, the force applied to

Cortes constituted a lawful response to his violent resistance. McKenzie argues that

Cortes failed to specifically identify what wrongful acts McKenzie committed, but

we have “reject[ed] the argument that the force administered by each defendant in

[a] collective beating must be analyzed separately to determine which of the

defendants’ blows, if any, used excessive force,” Skrtich v. Thornton, 280 F.3d

1295, 1302 (11th Cir. 2002). Viewing the evidence in the light most favorable to

Cortes as the nonmovant, see Hoyt v. Cooks, 672 F.3d 972, 977 (11th Cir. 2012),

the district court correctly determined that McKenzie was not “entitled to judgment

as a matter of law,” Fed. R. Civ. P. 56(a).

      The district court also did not err by denying Small’s motion for summary

judgment. Small insists that he was, at most, a bystander to the incident, but “[i]t is

not necessary that a police officer actually participate in the use of excessive force

in order to be held liable under section 1983.” Skrtich, 280 F.3d at 1302 (quoting

Fundiller v. City of Cooper City, 777 F.2d 1436, 1441 (11th Cir. 1985)). “[A]n

officer who is present at the scene and who fails to take reasonable steps to protect

the victim of another officer’s use of excessive force, can be held liable for his

nonfeasance.” Id. (quoting Fundiller, 777 F.2d at 1442). Based on Cortes’s version

of events, the officers used force exceeding what was necessary to control Cortes.




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A reasonable jury could find that Small’s involvement, whether direct or passive,

violated Cortes’s right to be free from the use of excessive force.

      Magloire, Bradley, and Scott argue that Cortes is collaterally estopped from

asserting a claim of excessive force because of his prior conviction for battery, but

we disagree. We review the preclusive effect of a state court judgment based on the

rules of collateral estoppel applied by the state. Brown v. City of Hialeah, 30 F.3d

1433, 1437 (11th Cir. 1994) (citing U.S. Const. Art. IV, § 1); accord Stephens v.

Degiovanni, 852 F.3d 1298, 1319 (11th Cir. 2017). Under Florida law, a defendant

in a civil proceeding may use collateral estoppel to prevent a plaintiff who

previously was convicted by plea in a criminal case from relitigating an issue

disposed of in his criminal proceedings, even though the civil defendant was not a

party to the criminal case. Zeidwig v. Ward, 548 So. 2d 209, 214 (Fla. 1989). The

bar applies whether the conviction was by plea of guilty, Paterno v. Fernandez,

569 So. 2d 1349 (Fla. Dist. Ct. App. 1990); Lora v. Dep’t of State, Div. of

Licensing, 569 So. 2d 840 (Fla. Dist. Ct. App. 1990), or a plea of nolo contendere,

Starr Tyme, Inc. v. Cohen, 659 So. 2d 1064, 1068 (Fla. 1995). “However, the

defendant is estopped only as to matters that necessarily were decided in favor of

the State in the prior proceeding.” Id.; accord Vazquez v. Metro. Dade Cty., 968

F.2d 1101, 1108 (11th Cir. 1992) (“[I]t is clear that as a matter of Florida law . . .

collateral estoppel is not appropriate when an issue forming the basis for a civil


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suit was not necessarily resolved in a prior criminal proceeding.”). Cortes’s

conviction establishes only that he unlawfully touched or struck Bradley. The

officers are not entitled to collateral estoppel because the record of conviction does

not answer whether Bradley’s conduct was reasonable or whether additional force

was warranted against Cortes.

       The officers also argue that Cortes’s claims are barred by Heck, but we again

disagree. Under Heck, if a judgment in favor of a plaintiff in a civil action “would

necessarily imply the invalidity of his conviction or sentence[,] . . . the complaint

must be dismissed unless the plaintiff can demonstrate that the conviction or

sentence has already been invalidated.” 512 U.S. at 487. According to the officers,

after Cortes punched Bradley once, Bradley punched Cortes two or three times,

which was followed by Magloire using force against Cortes and Leandre spraying

Cortes with pepper foam. Based on those facts, success on Cortes’s claims of

excessive force and battery do not necessarily imply the invalidity of his

conviction for battering Bradley. See Dyer v. Lee, 488 F.3d 876, 882–83 (11th Cir.

2007) (holding that a claim for excessive force was not barred by Heck when the

alleged force did not occur until after the plaintiff kicked one of the officers, the

action that had formed the basis of her conviction for battery on a law enforcement

officer).




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      The district court did not err by denying Magloire, Bradley, Scott, and

Leandre summary judgment based on qualified immunity. A material factual

dispute exists whether the officers used excessive force. Cortes’s single strike at

Bradley did not necessarily justify the deputy responding with two to three

punches or necessitate that the other officers apply additional force to and dispense

pepper spray on Cortes. See Vazquez, 968 F.2d at 1108 (“The fact that the act to

which the police responded was a criminal act does not foreclose the possibility

that the officers’ response also was illegal.”). Cortes testified that he lifted his arms

and perhaps flailed about, but he maintained that his actions were intended to repel

the officers’ blows and could not have been interpreted as acts of aggressiveness. If

we accept as true Cortes’s statements, which we must at this stage in the

proceedings, see Hoyt, 672 F.3d at 977, a reasonable jury could find that Bradley,

Magloire, Scott, and Leandre gratuitously used force against Cortes in violation of

his constitutional rights.

                                 IV. CONCLUSION

      We AFFIRM the denial of the officers’ motions for summary judgment

based on qualified immunity.




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