                                                                                [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                                                                            FILED
                              ________________________             U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                       JANUARY 29, 2002
                                    No. 00-15959                      THOMAS K. KAHN
                              ________________________                     CLERK

                         D.C. Docket No. 99-00742 CV-J-21B


DAVID C. SKRTICH,
                                                                 Plaintiff-Appellee,

       versus


TIMOTHY ALVIN THORNTON, in his individual capacity,
JASON PATRICK GRIFFIS, in his individual capacity, et al.,

                                                                 Defendants-Appellants.

                            __________________________

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

                                   (January 29, 2002)


Before BLACK and BARKETT, Circuit Judges, and HOBBS*, District Judge.



   *
    Honorable Truman M. Hobbs, U.S. District Judge for the Middle District of Alabama, sitting
by designation.
BARKETT, Circuit Judge:

      On our own motion, we vacated the original opinion in this case, Skrtich v.

Thornton, 267 F.3d 1251 (11th Cir. 2001), and now substitute the following

opinion.

      In this interlocutory appeal, Willie Archie, James E. Dean, Stacey L. Green,

and Tony Anderson, all Florida State Corrections Officers, appeal the denial of

their motion for summary judgment based on qualified immunity. David C.

Skrtich sued the officers under 42 U.S.C. § 1983 alleging a violation of his Eighth

and Fourteenth Amendment rights when he was subjected to an excessive and

unjustified use of force while incarcerated at Florida State Prison. In addition,

Timothy A. Thornton and Jason P. Griffis, both Florida State Corrections Officers,

appeal the denial of their motion to dismiss based on qualified immunity in the

same action.

                                   DISCUSSION

I. Denial of Summary Judgment to Anderson, Archie, Dean and Green.

      We review de novo a district court’s ruling on summary judgment, applying

the same legal standards as the district court. See Whatley v. CNA Ins. Cos., 189

F.3d 1310, 1313 (11th Cir. 1999). Summary judgment is appropriate only when

the evidence before the court demonstrates that “there is no genuine issue of


                                          2
material fact and that the moving party is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c). The evidence must be viewed in the light most favorable to

the non-moving party. Augusta Iron and Steel Works, Inc. v. Employers Ins. of

Wausau, 835 F.2d 855, 856 (11th Cir.1988). On review of a district court’s denial

of summary judgment, the Court considers the pleadings, depositions, affidavits,

answers to interrogatories and admissions together with the affidavits if any, and

views those facts in the light most favorable to the non-moving party. The only

evidence before the judge on summary judgment was the deposition of Skrtich and

Skrtich’s prison and medical records. Based thereupon, the undisputed facts in the

record, viewed in the light most favorable to Skrtich, indicate the following. On

January 13, 1998, Skrtich was incarcerated at Florida State Prison when officers

Anderson, Thornton, Griffis, Archie, Dean and Green were called to Skrtich’s cell

to perform a “cell extraction” because he had refused to vacate his cell so it could

be searched. Skrtich was on “close management status” due to his history of

disciplinary problems. The prison records set out his disciplinary problems, which

include a conviction for aggravated assault with a deadly weapon for repeatedly

stabbing a prison guard. Skrtich had been subject to several cell extractions in the

past. Griffis, Archie, Dean and Green arrived at Skrtich’s cell wearing riot gear.

At Thornton’s direction, Griffis entered Skrtich’s cell and used an electronic shield


                                          3
to shock Skrtich, knocking him to the floor. According to Skrtich’s deposition,

after the electric shock was administered, he was knocked into the wall and fell to

the floor. Skrtich states that, once on the floor, he offered no physical resistance,

and Griffis, Archie and Dean kicked him repeatedly in the back, ribs and side, and

Green struck him with his fists. Three times, after falling, Skrtich was lifted onto

his knees and the beating continued each time. Thornton and Anderson watched

and did nothing to stop the beating. At some point, Thornton verbally threatened

Skrtich and actively participated in the assault by knocking Skrtich to the ground

several times after the other officers picked him up, and by slamming his head into

the wall.1

       As a result of his injuries, Skrtich had to be airlifted by helicopter to a

hospital, where he remained for nine days and was treated for extensive injuries

and spent several months recuperating. The medical records, which are not

contested, reflect that Skrtich was “the victim of a significant amount of force,”

which resulted in (1) left chest trauma with multiple fractures to the left ribs and

left hemopneumothorax, (2) back injury with fractured multiple transverse


   1
      Skrtich alleged in his complaint that Thornton directed Griffis, Archie, Dean and Green to
enter Skrtich’s cell and that Thornton and Anderson “acquiesced in and took no action to stop
their subordinates from punching and kicking the plaintiff.” In his deposition, Skrtich
additionally testified that Thornton verbally threatened him and repeatedly knocked him down
after he was lifted up by the officers, and slammed his head into the wall.

                                                4
processes, (3) right scalp laceration, (4) left shoulder and right knee injury, (5)

abdominal trauma, and (6) post trauma anemia.2 The records further note that

Skrtich’s chest “[r]evealed the presence of an extensive amount of injuries with

multiple abrasions and contusions and several markings of shoes on his back and

left chest.”3 Dr. Victor Selyutin of Florida State Prison as well as Dr. W. F.

Mathews reported “that the shoe impressions on inmate Skrtich were probably

made from a stomping motion as opposed to merely holding him down.”4 Dr.

Selyutin further told the Inspector General that, in his opinion, Mr. Skrtich’s

injuries were consistent with “physical abuse.”5

         Under the Eighth Amendment, force is deemed legitimate in a custodial

setting as long as it is applied “in a good faith effort to maintain or restore

discipline [and not] maliciously and sadistically to cause harm.” Whitley v.

Albers, 475 U.S. 312, 320-21 (1986) (quoting Johnson v. Glick, 481 F.2d 1028,

1033 (2d Cir. 1973)); see also Hudson v. McMillian, 503 U.S. 1, 8 (1992). To

determine if an application of force was applied maliciously and sadistically to

   2
       R-62, Exhibit A, Discharge Summary of Dr. O. Contarini, M.D.
   3
       R-62, Exhibit B, Physical History and Examination by Dr. Contarini.
   4
     R-62, Exhibit C, Case Notes of Keith Adams, Correctional Officer Senior Inspector, Office
of the Inspector General.
   5
     R-62, Exhibit D, Case Diary and Work Record of Keith Adams, Correctional Officer Senior
Inspector, Office of the Inspector General.

                                                5
cause harm, a variety of factors are considered including: “the need for the

application of force, the relationship between that need and the amount of force

used, the threat reasonably perceived by the responsible officials, and any efforts

made to temper the severity of a forceful response.” Hudson, at 7-8; see also

Whitley, 475 U.S. at 321; Harris v. Chapman, 97 F.3d 499, 505 (11th Cir. 1996).

From consideration of such factors, “inferences may be drawn as to whether the

use of force could plausibly have been thought necessary, or instead evinced such

wantonness with respect to the unjustified infliction of harm as is tantamount to a

knowing willingness that it occur.” Whitley, 475 U.S. at 321 (quoting Johnson,

481 F.2d at 1033). Moreover, an 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 personally liable for his nonfeasance. See Post v. City of Fort

Lauderdale, 7 F.3d 1552, 1560 (11th Cir.1993), as amended, 14 F.3d 583 (11th

Cir.1994) (“A police officer has a duty to intervene when another officer uses

excessive force.”); Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir.1986) (“if a

police officer, whether supervisory or not, fails or refuses to intervene when a

constitutional violation such as an unprovoked beating takes place in his presence,

the officer is directly liable under Section 1983"); Fundiller v. City of Cooper City,

777 F.2d 1436, 1442 (11th Cir.1985) (“an officer who is present at the scene and


                                          6
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”); Harris v. Chanclor, 537

F.2d 203, 206 (5th Cir.1976)6 (“a supervisory officer is liable under [Section] 1983

if he refuses to intervene where his subordinates are beating an inmate in his

presence”).

       In this Circuit, a defense of qualified immunity is not available in cases

alleging excessive force in violation of the Eighth Amendment, because the use of

force “maliciously and sadistically to cause harm” is clearly established to be a

violation of the Constitution by the Supreme Court decisions in Hudson and

Whitley. See Johnson v. Breeden, __ F.3d __ (11th Cir. 2002). There is simply no

room for a qualified immunity defense when the plaintiff alleges such a violation.

Id. The only question, then, is whether the plaintiff has alleged facts sufficient to

survive a motion to dismiss or a motion for summary judgment. If he has done so,

that is the end of the inquiry. Accordingly, we consider whether Skrtich’s

allegations make out a violation of his Eighth Amendment rights.

       The defendants argue that force was necessary in this case because Skrtich

was uncooperative and refused to comply with orders to submit to standard


   6
     In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit
adopted as binding precedent all Fifth Circuit decisions handed down prior to the close of
business on September 30, 1981.

                                               7
handcuffing procedure. They also argue that they had reason to be especially wary

in their interactions with Skrtich given his “close-management status,” a status

reserved for prisoners with disciplinary problems.7 Defendants argue that, given

the context of Skrtich’s history, they reasonably believed the use of force to be

necessary to maintain order in the prison.

       Skrtich does not challenge the officers’ use of the electronic shield, which

knocked him to the ground; he concedes that some degree of force was lawful in

light of his noncompliance with the officers’ order to submit to handcuffing so that

the officers could search his cell. Skrtich only challenges the assault that occurred

after he had been incapacitated by the shock of the electronic shield. While

Skrtich’s history may have warranted extra precautions in performing the cell

extraction, the evidence, viewed in the light most favorable to Skrtich, is that once

he was shocked with the shield, he was incapacitated. It is not constitutionally

permissible for officers to administer a beating as punishment for a prisoner’s past

misconduct.



   7
     The defendant-officers also point to numerous specific incidents of Skrtich’s past violent
confrontations with prison guards. An officer’s knowledge of such evidence may be relevant to
the assessment of the degree of force that a reasonable officer would have believed was
necessary. However, defendants have offered no evidence that they knew of these violent
incidents. Moreover, such knowledge would hardly cause a reasonable officer to believe that the
extensive injuries inflicted on this prisoner were necessary to maintain good order and discipline,
thus insulating him from a constitutional violation.

                                                8
      We also find meritless and summarily reject appellants’ argument that a “de

minimis” use of force does not support a claim of excessive force. Harris v.

Chapman, 97 F.3d at 505 (citing Hudson, 503 U.S. at 7-8). Although a de minimis

use of force cannot support a claim for excessive use of force, the kind of injuries

Skrtich suffered, which is one factor to consider in determining the excessiveness

of the force used, see Hudson, 503 U.S. at 7, included multiple rib fractures, back

injuries, lacerations to the scalp, and abdominal injuries requiring hospitalization

for nine days and rehabilitation for months and could hardly be the result of a de

minimis application of force. Moreover, we reject the argument that the force

administered by each defendant in this collective beating must be analyzed

separately to determine which of the defendants’ blows, if any, used excessive

force. The evidence, viewed in the light most favorable to Skrtich, is that the cell

extraction team, including Archie, Dean and Green, acted in concert to administer

the beating while Anderson and Thornton watched from outside the cell. Thornton

at some point also took part in it. This beating resulted in undisputably severe

injuries requiring Skrtich to be flown to a hospital. “It is not necessary that a

police officer actually participate in the use of excessive force in order to be held

liable under section 1983. Rather, an officer who is present at the scene and who

fails to take reasonable steps to protect the victim of another officer’s use of


                                           9
excessive force, can be held liable for his nonfeasance.” Fundiller v. City of

Cooper City, 777 F.2d 1436, 1441-42 (11th Cir. 1985) (finding that arrestee had

stated a claim for relief for unlawful use of force against officers who, instead of

rendering aid to a suspect who had been shot five times by an officer, dragged

suspect from his car, placed him face down on the ground, and shackled his hands

behind him, exacerbating his wounds).

      The undisputed evidence in this record reflected that Skrtich had been

electrically shocked to render him unable to resist, and then kicked, punched and

beaten. In the absence of any evidence that any force, much less the force alleged

here, was necessary to maintain order or restore discipline, it is clear that Skrtich’s

Eighth Amendment rights were violated.

      Having determined that the officers’ alleged beating violated Skrtich’s

Eighth Amendment rights, we conclude that no qualified immunity defense was

available to the officers, and therefore find that the district court did not err in

denying their motion for summary judgment. Because the district court in this case

undertook a separate qualified immunity analysis, however, we also note that we

find no error in its reasoning. Qualified immunity protects government officials

acting within their discretionary functions from liability for civil damages as long

as their conduct does not violate clearly established statutory or constitutional


                                            10
rights that a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S.

800, 818 (1982); Rogers v. Miller, 57 F.3d 986, 988 (11th Cir.1995). There is no

dispute that the appellants were acting within the scope of their discretionary

authority; thus, the only question is whether the appellants’ alleged actions violated

clearly established constitutional law. Rich v. Dollar, 841 F.2d 1558, 1563-64

(11th Cir.1988). In determining whether qualified immunity bars a plaintiff’s

claim, we do not look at the subjective intent of the defendants. Rather, “[t]he

relevant, dispositive inquiry in determining whether a right is clearly established is

whether it would be clear to a reasonable officer that his conduct was unlawful in

the situation he confronted.” Saucier, 121 S.Ct. at 2156.

      The question for qualified immunity analysis is whether, at the time of the

incident, it was clearly established that it is unlawful to inflict a beating upon a

prisoner in custody when he is incapacitated and no longer able to pose a threat to

the guards’ ability to maintain order, resist the guards’ directions, or engage in

disruptive behavior. We answer that question in the affirmative. By 1998, our

precedent clearly established that government officials may not use gratuitous

force against a prisoner who has been already subdued or, as in this case,

incapacitated. See Harris v. Chapman, 97 F.3d 499, 505-06 (11th Cir. 1996);

Davis v. Locke, 936 F.2d 1208, 1212-13 (11th Cir. 1991); Williams v. Cash-


                                           11
C.O.I., 836 F.2d 1318, 1320 (1988); Perry v. Thompson, 786 F.2d 1093 (11th Cir.

1986). These cases contained facts very similar to the facts presented in this case

on the unlawful infliction of force on nonresisting prisoners.8 The circumstances



   8
      In Harris, a prisoner who refused to voluntarily submit to a haircut was forcibly removed
from his cell and restrained while officers attempted to cut his hair. He resisted and threatened
to kill the barber. The evidence showed that the officers as a group kicked and beat the inmate,
and that the sixth officer specifically snapped his head back with a towel, slapped him in the
face, and harassed him with several racial epithets and other taunts, causing injuries to his back.
We reversed the district court’s grant of judgment as a matter of law in favor of the officer,
finding that the evidence supported the jury finding that the sixth officer’s conduct constituted an
“unnecessary and wanton infliction of pain” in violation of the Eighth Amendment and the jury’s
award of punitive damages against the sixth officer. 97 F.3d at 505-06.
         In Davis, an inmate, after attempting to escape, was recaptured and confined in a dog
cage in the back of a truck with his hands shackled behind his back. He was then grabbed by his
ankles and pulled from the cage and in the process landed on his head because his hands were
shackled behind his back, causing him to suffer severe psychological injuries. The jury awarded
punitive damages against the correctional officers. This Court affirmed, finding that where the
inmate had been recaptured after his escape and confined in a dog cage with his hands shackled
behind his back, the ongoing violation of escape had been terminated and a jury could
reasonably conclude that he posed no continuing threat to the guards. 936 F.2d at 1213 ( “[T]he
law of this circuit prohibited the unjustified use of excessive force by a prison guard against an
inmate. The evidence supports a conclusion that Davis posed no continuing threat to [the
officers] after he was recaptured . . . .”) (citations omitted).
         In Williams, a prisoner refused to comply with a prison guard’s order to return to his cell.
The prisoner alleged that after he was subdued, the prison guard purposely broke his arm. The
defendants presented evidence that the prisoner’s arm was broken during the struggle to return
the prisoner to his cell. This Court held that summary judgment was not appropriate where the
prisoner alleged that the guard purposely broke his arm after he had ceased to resist. 836 F.2d at
1320.
         Finally, in Perry, a prisoner alleged that prison guards took him to a prison barber shop to
have him shaved with a razor, that he was in waist chains and his hands were cuffed in front of
him, and that the prison officers struck him in the face, head, shoulder, arms and legs and that
while he was down on the floor they kicked him in the sides, ribs, back and head. The officers
presented evidence that the prisoner had been shaved with a clipper without incident and that
prisoner’s medical records showed no complaint of injury on the day of the alleged beating. The
district court dismissed the plaintiff’s Section 1983 claim and granted summary judgment in
favor of the officers. This Court reversed, finding a “square, head-on dispute of material facts.”
786 F.2d at 1095.

                                                 12
facing the prison guards, specifically, a non-compliant inmate who had been

restrained by the guards and no longer posed a threat, were enough like the facts in

precedent that no reasonable, similarly situated official could believe that the

factual differences between this line of precedent and the circumstances here might

make a difference to the conclusion about whether the official’s conduct was

lawful and we find no merit to the defendant officers’ arguments claiming

entitlement to qualified immunity.

      The defendant-officers contend that because there is no case addressing

excessive force used in the context of a cell extraction, prison guards are

completely insulated from federal liability for any and all excessive force used in

cell extractions. The fact that the beating took place in the context of a cell

extraction does not materially distinguish this case from our precedent. The facts,

viewed in the light most favorable to Skrtich, demonstrate that Skrtich was

incapacitated by the shock from the electronic shield. The argument that beating a

prisoner for noncompliance with a guard’s orders after the prisoner had ceased to

disobey or resist turns the “clearly established law” of excessive force on its head

and changes the purpose of qualified immunity in excessive force cases from one

of protection for the legitimate use of force into a shield for clearly illegal conduct.

The law of excessive force in this country is that a prisoner cannot be subjected to


                                           13
gratuitous or disproportionate force that has no object but to inflict pain. Whitley,

475 U.S. at 320-21. This is so whether the prisoner is in a cell, prison yard, police

car, in handcuffs on the side of the road, or in any other custodial setting.9 The use

of force must stop when the need for it to maintain or restore discipline no longer

exists. Id. Long before the defendants acted, the law was clearly established that

correctional officers could not use force maliciously or sadistically for the very

purpose of causing harm. Whitley, 475 U.S. at 320-21.

       The Supreme Court has made it clear in Hudson that the same standard

applies to all prison excessive force claims. Any reasonable official understands


   9
       See supra n.7. Indeed, our excessive force analysis has never turned on the physical
location of the victim of a government official’s application of excessive force. The focus has
always been on the material factors, i.e., “the need for the application of force, the relationship
between that need and the amount of force used, the threat reasonably perceived by the
responsible officials, and any efforts made to temper the severity of a forceful response.”
Hudson, 503 U.S. at 7-8. Moreover, some conduct is so obviously contrary to constitutional
norms that even in the absence of caselaw, the defense of qualified immunity does not apply.
“When an excessive force plaintiff shows ‘that the official’s conduct lies so obviously at the very
core of what the . . . [Constitution] 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 Riveria Beach, 208 F.3d 919, 926 (11th Cir.
2000) (quoting Smith, 127 F.3d at 1419) (a police officer intentionally allowing his police dog to
bite an unresisting suspect is guilty of the use of excessive force, despite the fact that no previous
case ever addressed the same factual circumstances); see also United States v. Lanier, 520 U.S.
259, 117 S.Ct. 1219, 1227-28 (1997) (“The easiest cases don’t even arise. There has never been
... a section 1983 case accusing welfare officials of selling foster children into slavery; it does
not follow that if such a case arose, the officials would be immune from damages [or criminal]
liability.”) (citations omitted); Wilson v. Layne, 526 U.S. 603, 615 (1999) (“‘clearly
established’” for purposes of qualified immunity does not mean that “‘an official action is
protected by qualified immunity unless the very action in question has previously been held
unlawful.’”) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).


                                                 14
the contour of this right. Hudson, 503 U.S. at 7. In this case, Skritch claims that

after he was rendered inert by the electric shock and was not resisting, indeed not

capable of resisting, the officers administered a severe beating with no other

purpose than the infliction of pain. The district court properly concluded that the

officers who allegedly administered or failed to intervene in this beating are not

entitled to qualified immunity.

        II. Denial of motion to dismiss

        Turning to the claims of Thornton and Griffis that the district court erred in

denying their motion to dismiss on the basis of qualified immunity, we first

consider Skrtich’s argument that we need not reach the substantive question of

whether his complaint can withstand a motion to dismiss based upon a defense of

qualified immunity because the Federal Rules of Civil Procedure do not permit

successive Rule 12(b)(6) motions to dismiss, and because defendants’ filing of

their third motion to dismiss while the motion for summary judgment on qualified

immunity was pending constituted an abuse of the court process.10

        The first pleading filed by all defendants in this case was a motion to dismiss

on October 4, 1999, asserting only that the plaintiff had failed to exhaust his

   10
    Under the analysis in Johnson, __F.3d at __, the defendants’ motion to dismiss was due to
be denied because no defense of qualified immunity is available to Eighth Amendment claims of
excessive force. However, because we find that the defendants’ motion constituted an abuse of
process, we need not address the merits of the motion.

                                             15
administrative remedies. Before the court ruled, Skrtich filed a First Amended

Complaint on October 25, 1999, solely to add a state law claim. All defendants

then filed a second motion to dismiss, again raising the ground that the plaintiff

had failed to exhaust his administrative remedies, and adding that the court should

not accept jurisdiction over the state law claim if the federal claim was dismissed.

Qualified immunity was not mentioned in either the first or the second motion to

dismiss. The second motion to dismiss was denied on December 16, 1999.

         On January 24, 2000, all of the defendants in this case filed their answer to

the Amended Complaint. The answer did not set forth any affirmative defenses

and did not mention qualified immunity in any way. On April 28, 2000, two days

after Skrtich was deposed, an Amended Answer for all defendants was filed that

alleged for the first time the affirmative defense of qualified immunity. On June 5,

2000, all of the defendants then filed a motion for summary judgment on the basis

of qualified immunity. Prior to the hearing on summary judgment, however,

Thornton and Griffis withdrew from the motion for summary judgment. More than

one month later they filed their third motion to dismiss under Rule 12(b)(6).11

  11
       Rule 12(b)(6), Federal Rules of Civil Procedure, provides in relevant part that:
                (b)... Every defense, in law or fact, to a claim for relief in any
                pleading, whether a claim, counterclaim, cross-claim, or third-party
                claim, shall be asserted in the responsive pleading thereto if one is
                required, except that the following defenses may at the option of the
                pleader be made by motion: (1) lack of jurisdiction over the subject

                                                 16
      Qualified immunity is an affirmative defense to personal liability, which

must be pled, and if it is not, it is deemed waived. Moore v. Morgan, 922 F.2d

1553 (11th Cir. 1991). However, qualified immunity can be pled at various stages

in a case. This Circuit has held that qualified immunity is a question of law that

may be generally asserted (1) on a pretrial motion to dismiss under Rule 12(b)(6)

for failure to state a claim; (2) as an affirmative defense in the request for judgment

on the pleadings pursuant to Rule 12(c); (3) on a summary judgment motion

pursuant to Rule 56(e); or (4) at trial. Ansley v. Heinrich, 925 F.2d 1339, 1241

(11th Cir. 1991). However, all these pleadings must conform to the Federal Rules

of Civil Procedure. In this case, because a responsive pleading—an answer—had

been filed, under the plain language of Rule 12(b), a motion to dismiss would have

been inappropriate. Rule 12(b) provides that all defenses must be asserted either

(1) in a responsive pleading, or (2) by motion under Rule 12(b) before interposing

a responsive pleading if one is due. Furthermore, Rule 12(g) specifically prohibits

a party that has previously filed a motion to dismiss from filing a second pre-



             matter, (2) lack of jurisdiction over the person, (3) improper venue,
             (4) insufficiency of process, (5) insufficiency of service of process,
             (6) failure to state a claim upon which relief can be granted, (7)
             failure to join a party under Rule 19. A motion making any of these
             defenses shall be made before pleading if a further pleading is
             permitted.


                                              17
answer motion to dismiss raising an omitted defense that could have been

presented in the first motion to dismiss, “except a motion as provided in

subdivision (h)(2) hereof on any of the grounds there stated.” Subdivision (h)(2)

provides:

             A defense of failure to state a claim upon which relief
             can be granted, a defense of failure to join a party
             indispensable under Rule 19, and an objection of failure
             to state a legal defense to a claim may be made in any
             pleading permitted or ordered under Rule 7(a), or by a
             motion for judgment on the pleadings, or at the trial on
             the merits.

      In this case, the motion to dismiss asserting qualified immunity was filed

more than three months after the defendants’ answer had been filed and after two

prior motions to dismiss, both of which had omitted this defense and both of which

had been denied. The question is whether, under these circumstances, qualified

immunity can be asserted in this fashion.

      In Guzman-Rivera v. Rivera-Cruz, 98 F.3d 664 (1996), the First Circuit was

similarly confronted with an untimely defense of qualified immunity. The

defendant in Guzman-Rivera waited until far into the litigation to assert the defense

in its third motion for summary judgment. The court then concluded that “the

defense of qualified immunity [has] been waived for the current stage of the

litigation: the defense has been available to defendants since early in the litigation


                                          18
and, as the district court correctly found, the plaintiff has been prejudiced by the

defendants' intentional strategy of delay.” Id. at 669. The potential for abusive

delays or manipulative uses of qualified immunity claims is clear, as a defendant

can raise the defense at various stages of litigation and a denial of the defense at

any of these stages generally entitles a defendant to an immediate appeal. English

v. Dyke, 23 F.3d 1086, 1089 (6th Cir. 1994). Defendants who abuse the pretrial

process through such stalling, however, may waive their right to raise the defense

at the pretrial stage. Id.; see also Guzman-Rivera, 98 F.3d at 667-68; Apostol v.

Gallion, 870 F.2d 1335, 1339 (1989) (defendants may waive or forfeit their right

not to be tried if they use claims of immunity in a manipulative fashion). The

result of filing an answer, withdrawing a previously filed motion for summary

judgment after a plaintiff’s deposition has been taken, and then filing a third

motion to dismiss, is delay. Rule 12 does not permit legal tactics employed for

delay and we cannot endorse them.12 Moreover, as Skrtich notes, if a complaint is

   12
     Even if the complaint were deemed deficient in this case, an amended complaint would
have been permitted reflecting the allegations in Skrtich’s deposition. Presumably, Thornton and
Anderson would have moved for summary judgment a second time and, for the reasons
discussed above, the motion would have been correctly denied. Thus, the entire process in
which a plaintiff is entitled to a resolution in a timely manner would have been subverted, an
attempt that has obviously succeeded given the delays inherent in an appeal. Although generally
a defendant is disadvantaged when the issue of qualified immunity is not resolved expeditiously,
delay may work to the disadvantage of the plaintiff as well. Witnesses may become unavailable,
memories may fade, attorneys fees and costs accumulate, and a deserving plaintiff’s recovery
may be delayed. See Apostol, 870 F.2d at 1338. Delay is also costly to the court system,
demanding more time and energy from the court and retarding the disposition of cases.

                                              19
deemed deficient, it is late in the lawsuit for plaintiffs to correct or amplify

allegations in the Complaint, necessitating more motions and amended answers.

        Under the circumstances in this case, we find that Thornton and Griffis’

third motion to dismiss was improper and should have been dismissed by the

district court.13 For the foregoing reasons, the district court’s denial of the motion

for summary judgement and motion to dismiss is

        AFFIRMED.




   13
     We note that such a motion may be construed as a request for judgment on the pleadings
pursuant to Fed.R.Civ.P. 12(c) and as such not subject to the consolidation requirements of Rule
12(g). Fed.R.Civ.P. 12(h)(2); English, 23 F.3d at 1090 (failure to raise qualified immunity in
pre-answer motion to dismiss did not constitute a waiver of the right to raise the defense in a
second post-answer motion to dismiss under Fed.R.Civ.Proc. 12(h)(2) although the “ trial court
has discretion to find waiver if a defendant fails to assert the defense within time limits set by
the court or if the court otherwise finds that a defendant has failed to exercise due diligence or
has asserted the defense for dilatory purposes.”).
BLACK, Circuit Judge, concurring:

      This case involves a claim of excessive force inflicted upon a prisoner who

refused to comply with mandatory procedures for prison cell searches. The

prisoner, Appellee David C. Skrtich, was incarcerated at Florida State Prison, X-

Wing, which houses capital offenders and inmates who are severe discipline

problems. Appellee met the latter of these categories.

      At the time of the alleged excessive force, Appellee was serving a life

sentence for aggravated sexual battery on a woman who was seven months

pregnant. Appellee also was serving an additional fifteen-year sentence for

repeatedly stabbing a prison guard in the chest with an ice pick, while being

escorted by the guard to the shower. In the past five years, Appellee had over

eighty disciplinary reports, more than half of which involved threatening or

attacking prison staff. Due to disruptive behavior, Appellee was placed on close

management status.

      On January 13, 1998, correctional officers approached Appellee’s cell to

perform a routine cell search. Similar cell searches were conducted approximately

three times per week. In accordance with prison procedures, the officers ordered

Appellee to allow himself to be handcuffed so that he could be removed from the

cell. When Appellee refused, standard policy mandated the use of a cell extraction


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team. Appellee was familiar with the cell extraction process, as he has been

through at least eight cell extractions. The cell extraction team summoned on

January 13, 1998, consisted of Appellants Timothy Alvin Thornton, Jason Patrick

Griffis, Willie Archie, Stacey L. Green, and James E. Dean. Appellant Tony

Anderson supervised the team from outside the cell.

      Upon entering the cell, Griffis used an electronic shield to subdue Appellee.

The electric shock knocked Appellee to the floor. Appellee’s complaint and

deposition are somewhat muddled and inconsistent as to the ensuing events.

Appellee’s general allegations are that individual guards went well beyond the

force necessary to subdue him and extract him from his cell. Viewing the facts in

the light most favorable to Appellee, as is appropriate at this stage of the litigation,

Appellants are not entitled to qualified immunity. Therefore the result is correct.

The opinion, however, contains dicta that is not consistent with my understanding

of the law, so I must join in the result and not the opinion.




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