UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

CASE NO. 10-11673-C
D.C. CASE NO. 09-CV-80872-JIC




NORREL SUTHERLAND, et al,

AppellantPlaintiff,
vs.

BRIAN ALLISON, et al,

Appellee-Defendant.

/

___________________________________

REPLY BRIEF OF APPELLANT,
NORREL SUTHERLAND
___________________________________


DANIEL S. WEINGER
Florida Bar No. 172900
dweinger@conradscherer.com
GREGORY R. BARTHELETTE
Fla. Bar No.: 791296
gbarthelette@conradscherer.com
CONRAD & SCHERER, LLP
Attorneys for Appellant
633 South Federal Highway
Fort Lauderdale, Florida 33301
Telephone: (954) 462-5500
Facsimile: (954) 463-9244
ii
Table of Contents
Table of Contents ............................................................................................ ii
Table of Authorities ....................................................................................... iii
Introduction ..................................................................................................... 1
Argument ........................................................................................................ 2
I. The District Court Erred in Finding That There was Insufficient
Evidence to Create a Material Issue of Fact as to Whether Allison and
Perez Used Excessive Force when Handcuffing Sutherland ...................... 2
II. The District Court Erred in Granting Allison and Perez Summary
Judgment on Sutherlands Deliberate IndifferEnce Claim ......................... 8
Conclusion .................................................................................................... 10
Certificate of Compliance ............................................................................. 10
Certificate of Service .................................................................................... 10
iii
Table of Authorities
Cases
Bozeman v. Orum,
422 F.3d 1265 (11th Cir. 2005) .................................................................. 5
Brown v. City of Hialeah,
30 F. 3d 1433 (11th Cir. 1994) ................................................................... 5
Brown v. Hughes,
894 F.2d 1533 (11th Cir. 1990) .................................................................. 9
Copeland v. Stebco Products Corp.,
738 N.E.2d 199 (Ill. App. Ct. 2000) ........................................................... 3
Davis v. Williams,
451 F.3d 759 (11th Cir. 2006) ................................................................ 4, 8
Draper v. Reynolds,
369 F.3d 1270 (11th Cir. 2004) .................................................................. 6
Evans v. Stephens,
407 F.3d 1272 (11th Cir. 2005) .................................................................. 5
Hoffman v. Allied Corp.,
912 F.2d 1379 (11th Cir. 1990) .................................................................. 2
Keal Driveway Co. v. Car General Ins. Corp.,
145 F.2d 345 (5th Cir. 1944) ...................................................................... 3
Murphy v. International Robotic Systems, Inc.,
766 So. 2d 1010 (Fla. 2000) ....................................................................... 3
Reeves v. Sanderson Plumbing Prods., Inc.
530 U.S. 133 (2000) .................................................................................... 7
Rodriguez v. Farrell,
280 F.3d 1341 (11th Cir. 2002) .................................................................. 8
Secondo v. Campbell,
327 Fed. Appx. 126 (11th Cir. 2009) .......................................................... 8
Smith v. Mattox,
127 F.3d 1416 (11th Cir. 1997) .................................................................. 4
Tatum v. Jackson,
2009 WL 3633975 (S.D.N.Y.) .................................................................... 7
iv
U.S. v. Urban,
404 F.3f 754 (3rd Cit. 2005) ....................................................................... 8
Wilson v. United States,
162 U.S. 613, 16 S.Ct. 895 (1896) .............................................................. 8
Other Authorities
75 Am. Jur. 2d Trial 444 (2010) ................................................................... 3
Rules
Fed. R. App. P. 32 ......................................................................................... 10


1
Introduction
This is an appeal by the Appellant, Norrel Sutherland (Sutherland,
Plaintiff, or Appellant), from an order granting final summary judgment in
favor of the Appellees, Deputies Brian Allison and Max Perez (Allison, Perez,
or, collectively, Defendants or Appellees).
The following symbols will be used:
(R.) Record on Appeal.
(I.B.) Appellants Initial Brief
(A.B.) Appellees Joint Answer Brief
All emphasis is supplied by counsel unless otherwise indicated.
2
Argument
I. THE DISTRICT COURT ERRED IN FINDING
THAT THERE WAS INSUFFICIENT EVIDENCE TO
CREATE A MATERIAL ISSUE OF FACT AS TO
WHETHER ALLISON AND PEREZ USED EXCESSIVE
FORCE WHEN HANDCUFFING SUTHERLAND
For the most part, Sutherland relies upon the arguments raised in his Initial
Brief as to this issue. However, a few of the arguments raised by Allison and
Perez in their Joint Answer Brief warrant a response.
Defendants Answer Brief provides a textbook example of an improper
argument in favor of summary judgment. Defendants expend nearly one third of
their argument section (a little more than two out of seven pages) setting forth the
standards a court must follow in granting summary judgment, and spend the
remaining two thirds of their argument ignoring said standard. For example, citing
this Courts decision in Hoffman v. Allied Corp., 912 F.2d 1379, 1383 (11th Cir.
1990), Defendants acknowledge that in ruling on a motion for summary judgment
a court must view all evidence most favorably toward the non-moving party, and
all justifiable inferences are to be drawn in the non-moving partys favor. (A.B.
p. 7.) Defendants go on to assert, time and again, that Sutherlands fact section
reads like a closing argument. Ironically, by arguing as much, Defendants
implicitly concede that summary judgment was inappropriate, as a closing
argument is simply an attorneys presentation of the evidence in a light most
3
favorable to, and with all reasonable inferences drawn in favor of, their client. See
Keal Driveway Co. v. Car General Ins. Corp., 145 F.2d 345, 345 (5th Cir. 1944)
(holding that attorneys ordinarily have the right to argue to the jury their own
conception of what reasonable deductions should be drawn from facts in
evidence). See also Murphy v. International Robotic Systems, Inc., 766 So. 2d
1010, 1028 (Fla. 2000) (recognizing that in making a closing argument, attorneys
must confine their argument to the facts and evidence presented to the jury and all
logical deductions from the facts and evidence); 75 Am. Jur. 2d Trial 444 (2010)
(citing Copeland v. Stebco Products Corp., 738 N.E.2d 199 (Ill. App. Ct. 2000),
for the proposition that the purpose of closing argument is to draw reasonable
inferences from the evidence and assist the jury in fairly arriving at a verdict based
on the law and the evidence).
In his Initial Brief, Sutherland did nothing more than set forth the record
evidence supporting his claims without the need for even drawing many
inferences, be they reasonable or otherwise. The only inferences Sutherland seeks
drawn in his favor are those relating to whether Defendants acted in an objectively
reasonably manner. As discussed infra, those inferences are supported by both
Sutherlands and the officers testimony.
Substantively, Defendants completely ignore the heart of Sutherlands
argument; namely, that the trial courts entire analysis is based on the fatally
4
incorrect premise that Sutherland is an egg-shell plaintiff, a theory that is not
supported by any direct evidence and can only be adopted if drawing an inference
in Defendants favor. Defendants claim that the handcuffing in this case was
routine. (A.B. pp. 9, 11-12.) As discussed infra, the record does not support this
contention. However, even accepting for the sake of argument that the
handcuffing were routine, unless Sutherland were an egg-shell plaintiff, a
reasonable amount of force could never have resulted in a broken arm based under
the analysis in Smith v. Mattox, 127 F.3d 1416 (11th Cir. 1997), in which this
Court held that an officer breaking an arm during an arrest is so far beyond the
hazy border between excessive and acceptable force that [he] had to know he was
violating the Constitution. Id. at 1419.
Even if Sutherland were an egg-shell plaintiff, the evidence in the record
establishes an issue of fact as to when the officers first became aware of his
condition, which goes directly to whether the force they used was objectively
reasonable. Defendants repeatedly ignore Sutherlands testimony in this regard.
For example, in trying to distinguish Davis v. Williams, 451 F.3d 759 (11th Cir.
2006), Defendants assert that the record evidence is clear that they were not told
about Sutherlands injury until after the handcuffing and that Sutherland was only
subjected to a single, routine instance of handcuffing. (A.B. p. 9.) This ignores
Sutherlands repeated testimony that he told the officers about his arm at the very
5
beginning of a handcuffing process that lasted for several minutes. (R. 23-1, p. 42,
line 25, p. 43, lines 1-2; , p. 45, lines 1-8.) Moreover, this ignores Allisons own
admission that the handcuffing lasted for a full minute. (R. 22-3, p. 51, lines 15-
18.)
Another instance of Defendants improperly characterizing the evidence in
their own favor is their claim that Sutherland was subjected to a routine arrest.
(A.B. pp. 11-12.) This completely disregards Sutherlands testimony that despite
his continued pleas for mercy, Officer Allison kept getting angrier and angrier until
he unleashed a profanity laced tirade, which culminated in calling Sutherland a
fking Haitian and telling Sutherland that he was going to teach [him] a
lesson. (R. 23-1, p. 45, lines 1-8.) This testimony alone creates an issue of fact as
to whether Defendants use of force was objectively reasonable. See Brown v. City
of Hialeah, 30 F.3d 1433, 1436 (11th Cir. 1994) (finding that racial epithets and
profanities that are yelled by an officer during an arrest can be considered in
assessing the objective reasonableness of the officers force). See also Bozeman v.
Orum, 422 F.3d 1265, 1272 n. 11 (11th Cir. 2005) (same); Evans v. Stephens, 407
F.3d 1272, 1281-82 (11th Cir. 2005) (recognizing that threatening and racist
language has an impact on people and counts towards the unreasonableness of the
manner in which the officer performs his duties). If Sutherlands testimony is
true, as it must be in opposition to summary judgment, it describes an arrest that is
6
anything but routine. At the very least, Sutherlands testimony creates an issue of
fact as to whether Defendants use of force was objectively reasonable.
Defendants reliance on Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004),
is misplaced and generally highlights Defendants failure to view the record
evidence in a light most favorable to Sutherland. The Draper court held that the
single use of a taser gun causing a one-time shocking and resulting in no serious
injury was reasonable in light of video evidence that prior to being tasered, the
arrestee was belligerent, gestured animatedly, continuously paced, appeared very
excited, and spoke loudly even after repeated and calmly stated warnings from the
arresting officer that he would be taken to jail if his aggressive behavior continued.
Id. at 1273, 78. Conversely, in the instant case, the record evidence does not show
a short and quick handcuffing by a calm and collected officer. Rather, the
evidence viewed in a light most favorable to Sutherland shows a decidedly long
and drawn out handcuffing process that began with Allison making a racial epithet
before persistently yanking and pulling on Sutherlands deformed arm, all while
unleashing a profanity laced tirade. Moreover, unlike the plaintiff in Draper,
Sutherland did suffer permanent injuries as, in addition to suffering a broken arm,
Sutherland also sustained further nerve damage from the incident: he no longer has
any movement in his pinky finger and his passive range of motion in his right arm
7
has been reduced by half as compared to his passive range of motion prior to the
incident. (R. 27-1, pp. 14-15, 6)
Finally, Defendants ignore the inconsistencies between the internal
investigation and the testimony in this case, including Allison and Perez changing
their version of events, as discussed in great detail in the fact section of the Initial
Brief. (I.B. pp. 10-12.) These inconsistencies alone create a reasonable inference
that Allison and Perez initially lied about the events in order to cover up their
misconduct. See Tatum v. Jackson, 2009 WL 3633975 (S.D.N.Y.) (citing Reeves
v. Sanderson Plumbing Prods., Inc. 530 U.S. 133, 147 (2000) (finding that a jury
could reasonably have inferred that [the defendant] was deliberately lying about
the events of the morning in order to cover up her misconduct. Such an inference
would have been consistent with the general principle of evidence law that the
factfinder is entitled to consider a partys dishonesty about a material fact as
affirmative evidence of guilt.). It is so well established as to be beyond dispute
that, if [a] jury were satisfied, from the evidence, that false statements in the case
were made by defendant, or on his behalf, at his instigation, they had the right, not
only to take such statements into consideration, in connection with all the other
circumstances of the case, in determining whether or not defendant's conduct had
been satisfactorily explained by him upon the theory of his innocence, but also to
regard false statements in explanation or defense, made or procured to be made, as
8
in themselves tending to show guilt. U.S. v. Urban, 404 F.3f 754, 782 (3rd Cit.
2005) (quoting Wilson v. United States, 162 U.S. 613, 620-21, 16 S.Ct. 895, 898-
99 (1896)).
Plaintiff relies upon the analysis contained in the Initial Brief of Secondo v.
Campbell, 327 Fed. Appx. 126 (11th Cir. 2009), Davis v. Williams, 451 F.3d 759
(11th Cir. 2006), and Rodriguez v. Farrell, 280 F.3d 1341 (11th Cir. 2002), in
response to Defendants misapplication of same.
Based on the foregoing, the trial court committed reversible error when it
granted Defendants/Appellees Motion for Summary Judgment on Sutherlands
claims of excessive force.
II. THE DISTRICT COURT ERRED IN GRANTING
ALLISON AND PEREZ SUMMARY JUDGMENT ON
SUTHERLANDS DELIBERATE INDIFFERENCE
CLAIM
For the most part, Sutherland relies upon the arguments raised in his Initial
Brief as to this issue. However, a few of the argument raised by Allison and Perez
in their Joint Answer Brief warrant a response.
Once again Defendants present a myopic view of the record evidence in an
attempt to divert the Courts attention away from any and all facts showing that
summary judgment was improper on Plaintiffs claim of deliberate indifference.
Defendants assert that Sutherland refused medical treatment at the scene despite
9
his testimony that he asked Allison and Perez for medical assistance on numerous
occasions. (R. 23-1, p. 55, lines 21-25, p. 56, lines 1-8, p. 58, lines 19-24. p. 59,
lines 1-10, p. 64, lines 7-8.) Defendants also argue that because Plaintiff was
ultimately offered medical treatment immediately before being released from jail,
no deliberate indifference occurred. Defendants cite no support for this
proposition and fail to set forth how such an argument jibes with the decision in
Brown v. Hughes, 894 F.2d 1533 (11th Cir. 1990), where this Court held that with
an injury such as a broken limb:
it may be that deliberately indifferent delay, no matter how brief,
would render defendants liable as if they had inflicted the pain
themselves. Deliberately inflicted pain, as with an electric cattle prod,
does not become unimportant and unactionable under the eighth
amendment simply because the pain produced is only momentary.
Even if we were to recognize as de minimus delays of a few seconds
or minutes, a deliberate delay on the order of hours in providing care
for a serious and painful broken foot is sufficient to state a
constitutional claim.
Id. at 1538.
Based on the foregoing, the trial court committed reversible error when it
granted Defendants/Appellees Motion for Summary Judgment on Sutherlands
claims of deliberate indifference.
10
Conclusion
Based on the foregoing, as well as the reasons more specifically set forth in
Sutherlands Initial Brief, this Court should reverse the order granting summary
judgment in favor of Appellees and remand the case for trial.
Certificate of Compliance
I hereby certify that this brief complies with the type-volume limitation set
forth in Fed. R. App. P. 32(a)(7)(B) and contains 2,505 words. This brief
complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type
style requirements of Fed. R. App. P. 32(a)(6) and has been prepared using 14
point Times New Roman.
Certificate of Service
I hereby certify that a true and correct copy of the Initial Brief of Appellant,
Norrel Sutherland, was mailed to Fred H. Gelston, 601 N. Dixie Highway, Suite C,
West Palm Beach, Florida 33401 on this 15th day of October, 2010.
11
CONRAD & SCHERER
Attorneys for Appellant
633 South Federal Highway
Fort Lauderdale, Florida 33301
Telephone: (954) 462-5500
Facsimile: (954) 463-9244

BY:
DANIEL S. WEINGER
Florida Bar No. 172900
dweinger@conradscherer.com
GREGORY R. BARTHELETTE
Florida Bar No.: 791296
gbarthelette@conradscherer.com