J.I.W. v. Blake Dorminey ( 2022 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12330
____________________
J.I.W.,
a minor, by and through T.W., his mother and next friend,
Plaintiff-Appellee,
versus
BLAKE DORMINEY,
individually,
Defendant-Appellant,
CITY OF SLOCOMB,
an Alabama municipality,
Defendant.
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2 Opinion of the Court 21-12330
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 1:20-cv-00787-ECM-KFP
____________________
Before LUCK, BRASHER, and HULL, Circuit Judges.
PER CURIAM:
The question in this appeal is whether a school resource of-
ficer is entitled to qualified immunity for restraining a student, re-
sulting in the officer breaking the student’s arm. J.I.W., a thirteen-
year-old middle school student at the time of the incident, had a
history of psychological issues, having been hospitalized several
times for psychological disorders. One afternoon, J.I.W. entered a
classroom, informed his teacher he did not take his medication, and
proceeded to act disruptively. The teacher instructed him to leave
the classroom. J.I.W. moved into the hallway where the situation
escalated, and J.I.W. refused to yield to educators’ requests that he
go to the principal’s office. Two teachers, one guidance counselor,
and one administrator tried to calm J.I.W. to no avail. J.I.W.’s be-
havior prompted an administrator to radio the school resource of-
ficer, Blake Dorminey, who arrived moments later.
Dorminey witnessed J.I.W. speaking with an administrator.
J.I.W. then punched a locker and moved in the administrator’s di-
rection. Dorminey grabbed J.I.W. by the arm and attempted to
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21-12330 Opinion of the Court 3
calm him down. Over the next thirty seconds, J.I.W. pulled away
from Dorminey four times. Dorminey used three increasingly
forceful “wristlock” maneuvers, each of which J.I.W. forcefully re-
sisted. On the third try, J.I.W.’s arm “popped,” and the two went
to the ground. J.I.W. hit the ground and began writhing and
screaming in pain. Dorminey applied handcuffs. After the incident,
J.I.W. underwent two surgeries to repair his broken arm.
In this civil action, the district court denied Dorminey’s mo-
tion to dismiss under Federal Rule of Civil Procedure 12(b)(6) hold-
ing that J.I.W. stated plausible claims for excessive force under 42
U.S.C. § 1983 and assault and battery under Alabama state law. The
district court held that J.I.W. plausibly alleged Dorminey’s use of
force violated J.I.W.’s Fourth Amendment rights and the rights
were clearly established. The district court denied Dorminey qual-
ified immunity as to the excessive force claim and state agent im-
munity as to the Alabama-law assault and battery claims.
We disagree with the district court’s denial of Dorminey’s
motion and hold that Dorminey is entitled to qualified immunity.
Further, we hold that the dismissal of J.I.W.’s federal claim neces-
sitates the dismissal of his state law claim on jurisdictional grounds
and do not reach the question of whether he is entitled to state
agent immunity. Accordingly, we reverse in part.
I. BACKGROUND
We derive the following facts from the operative complaint,
witness statements that were incorporated into the complaint, and
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a surveillance video relied on in the complaint. We construe all
facts and draw all reasonable inferences in favor of the plaintiff.
J.I.W. was a thirteen-year-old middle school student at the
time of the incident. He had a history of psychiatric issues. He had
been hospitalized several times for psychological disorders, includ-
ing bipolar disorder, obsessive compulsive disorder, oppositional
defiant disorder, separation anxiety disorder, conduct disorder,
ADHD, and major depression. These maladies interfered with
J.I.W.’s ability to learn in a traditional school environment. Both
the educators involved in the incident and Dorminey knew J.I.W.
was prone to misbehavior.
The complaint and several witness statements, which the
complaint incorporates by reference, reflect that J.I.W. “became
agitated and upset” while in teacher Michelle Hendrix’s classroom.
J.I.W. entered the classroom and informed Hendrix that he had not
taken his medication that day and she was “just going to have to
deal with” his behavior. Further, J.I.W. would not allow Hendrix
to begin class; he “continued to get up out of his desk, push his desk
around, and sling his bookbag.” J.I.W. became concerned that a
group of students was talking about him. He “approached the
group . . . and threatened” them to stop talking about him.
Hendrix became concerned “for the safety of the other stu-
dents as well as for [J.I.W.’s] safety.” She instructed J.I.W. to leave
the classroom and go into the hallway. In the hallway, J.I.W. “be-
came more agitated [and] angrier.” Hendrix told J.I.W. to go see
Assistant Principal Brad George, but J.I.W. refused and continued
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to yell at her. Hendrix asked guidance counselor Kari Whitaker for
help. Whitaker asked J.I.W. to walk with her to a place to calm
down, but he refused. Whitaker recounted that J.I.W. “was acting
very aggressive and disrespectful towards anyone who tried to rea-
son with him.”
More educators arrived. Assistant Principal George tried to
calm J.I.W., but did not succeed. Special education teacher Staci
Wilkerson also tried to deescalate the situation. She, too, failed.
Wilkerson reported that J.I.W. exhibited “signs of anger.”
After multiple educators failed to get J.I.W. under control,
George radioed Dorminey. Dorminey received the call “to respond
to the . . . School,” but George gave no other information. B.T.
Hinson, a principal at the adjoining high school, heard the call for
a school resource officer and came to the middle school. He arrived
before Dorminey and “tried to get [J.I.W.] to talk” and “go for a
walk to calm down.” J.I.W. “yelled at [Hinson] and wouldn’t go.”
Principal Zeb Brown also arrived around this time. As Brown ap-
proached, he saw that Hinson “was engaged with the student.”
Dorminey entered the school and followed the sound of
“shouting and screaming” to the hallway. He then noticed that
J.I.W., a student he “had dealings with in the past,” was speaking
with Hinson. J.I.W. “punched a metal locker” and proceeded to
move in the direction of Hinson.
All but one witness reported that J.I.W. moved aggressively
or threateningly. Whitaker reported that J.I.W. “punched the
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locker and bowed up at [Hinson] acting like he was going to hit
him.” George recalled that J.I.W. “turned and punched a locker[]
and then ‘bowed’ up at [Hinson].” Wilkerson reported that J.I.W.
“punched the locker and c[ame] at [Hinson].” Hinson remembered
that “[a]fter punching the locker, [J.I.W.] started walking toward
me aggressively.” Brown said that while Hinson and J.I.W. were
talking, J.I.W. “suddenly turned” away from Hinson “and punched
[a] locker,” then “turned back towards [Hinson] with his shoulders
back, fist clenched[,] and chest out lunging in the direction of [Hin-
son].” For his part, Dorminey remembered that J.I.W. “quickly
turned towards Hinson with clinched closed fist[s] and lunged to-
wards Hinson in a manner in which he was about to strike Hin-
son.” Hendrix was alone in not referencing any aggression by
J.I.W.
After J.I.W. moved toward Hinson, Dorminey “place[d] his
left hand on J.I.W.’s left arm and beg[an] to walk him down [the]
hallway.” The video of the incident depicts Dorminey controlling
J.I.W. by the left arm and directing him toward the left of the
frame.
J.I.W. and Dorminey came to rest a few seconds later, with
J.I.W. facing the wall. J.I.W. placed his free right hand on the wall
and pushed back. Two seconds later, J.I.W. twisted his body to the
left and away from Dorminey. Over the next five seconds, Dor-
miney tugged him back three times. Dorminey explained that, as
he was holding J.I.W. by the arm, he told J.I.W. that if he did not
“calm down,” Dorminey “would have to place him in cuffs.”
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Dorminey spoke in a “calm but authoritative voice, as [he] kn[e]w
in the past, loud and shouting [sic] does not calm [J.I.W.] down.”
Yet according to Dorminey, J.I.W. “rejected and refused” his com-
mands and “actively resist[ed]” Dorminey through his movements.
During the struggle, J.I.W. was “yell[ing]” at Dorminey, who was
“instruct[ing] [J.I.W.] continuously to stop and stand still,” or he
would handcuff J.I.W. Hendrix stated that J.I.W. was yelling,
“Leave me alone! Shut Up! Don’t talk to me! I’m not going any-
where!”
Dorminey repositioned J.I.W. with his back to the wall, still
guiding him by the left arm. Dorminey tugged J.I.W. back to him
a fourth time. Dorminey “decided that verbal commands were not
gaining control of the situation and decided to place [J.I.W.] in hand
cuffs.” “[W]ithout any visible provocation from J.I.W.,” Dorminey
“harshly twist[ed] J.I.W.’s wrist and wrenche[d] J.I.W.’s left arm
behind his back.” Dorminey bent J.I.W.’s left wrist up J.I.W.’s back
and pushed his elbow crease toward the ground, but J.I.W. coun-
tered the force, backed into Dorminey, and bent over such that he
stayed on his feet. Dorminey also “order[ed] [J.I.W.] to go to the
ground.”
The two stood back up, and Dorminey let go of J.I.W.’s
wrist with his left hand, repositioned his hand further up J.I.W.’s
arm, and pushed downward. J.I.W. had his backside against the
wall and his legs planted, which allowed him to counter Dor-
miney’s force again.
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With J.I.W. still bent over from resisting the second
takedown attempt, Dorminey pulled J.I.W.’s twisted left arm ver-
tically and then forced it downward into J.I.W.’s back. Dorminey
“slam[med] J.I.W. to the floor while simultaneously bringing his
own body weight down on to J.I.W. and driving his elbow into
J.I.W.’s back.” He “heard a loud popping sound” as J.I.W. “began
to go to the ground.”
The video depicts the two coming to rest on the ground,
with J.I.W. on his right side. Dorminey pulled back, and J.I.W.
rolled onto his stomach and began frantically kicking his legs. J.I.W.
began to “scream that []his arm was hurt and in pain.” Dorminey,
with J.I.W.’s left arm still bent and secured in Dorminey’s left hand,
placed his right hand in the small of J.I.W.’s back and straddled him.
Dorminey secured handcuffs on J.I.W.’s left wrist while J.I.W. con-
tinued frantically kicking his legs. After a few seconds of additional
kicking, Dorminey cuffed the right arm.
Dorminey let go of the left arm and kept J.I.W. handcuffed
on his stomach while Dorminey used his radio for about a minute.
Dorminey, now standing, set J.I.W. up by grabbing his right arm
and shoulder. As Dorminey lifted the right side, J.I.W. slid his left
leg under himself and sat on his backside. Dorminey let go of
J.I.W., who moved back and leaned up against the wall. Dorminey
removed the handcuffs a little over three minutes later. Paramedics
arrived shortly after.
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J.I.W. was taken to the hospital and diagnosed with a broken
arm. His injuries required two surgeries. J.I.W. was not punished
by the school or charged with a crime for his conduct.
J.I.W., by and through his mother, sued Dorminey and the
City of Slocomb in the United States District Court for the Middle
District of Alabama. He sought damages from Dorminey and the
City under 42 U.S.C. § 1983 for excessive use of force in violation
of the Fourth and Fourteenth Amendments to the United States
Constitution and from Dorminey for assault and battery under Al-
abama law.
Dorminey and the City moved to dismiss the complaint for
failure to state a claim for relief. J.I.W. responded, conceding that
he could neither recover from Dorminey in his official capacity nor
recover punitive damages from the City. His response forfeited any
independent claim against Dorminey under the Fourteenth
Amendment, leaving only an excessive force claim. The district
court also dismissed J.I.W.’s claim against the City. However, the
district court denied Dorminey qualified and state agent immunity
and thus his motion to dismiss as to the excessive force and Ala-
bama law claims. Dorminey filed a timely notice of interlocutory
appeal.
II. STANDARD OF REVIEW
We review a district court’s ruling on a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6) based on qualified
immunity de novo, generally accepting the facts alleged in the
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complaint as true and drawing all reasonable inferences from them
in the plaintiff’s favor. See Chesser v. Sparks, 248 F.3d 1117, 1121
(11th Cir. 2001). A motion to dismiss is due to “be granted if the
complaint fails to allege the violation of a clearly established con-
stitutional right.” St. George v. Pinellas Cnty., 285 F.3d 1334, 1337
(11th Cir. 2002) (quotation omitted). When a government official
raises the “defense of qualified immunity, we first consider
whether the defendant government official has proved that he was
acting within the scope of his discretionary authority when the al-
leged wrongful act occurred.” Gonzalez v. Lee Cnty. Hous. Auth.,
161 F.3d 1290, 1294–95 (11th Cir. 1998) (alteration and quotation
omitted). “Once the defendant establishes that he was acting
within his discretionary authority, the burden shifts to the plaintiff
to show that qualified immunity is not appropriate.” Lee v. Fer-
raro, 284 F.3d 1188, 1194 (11th Cir. 2002).
III. DISCUSSION
Dorminey argues that the district court erred in denying him
(1) qualified immunity for the Section 1983 claim and (2) state agent
immunity for the assault and battery claims.
A. J.I.W.’s Section 1983 Claim
We turn first to J.I.W.’s excessive force claim under Section
1983. Under the Fourth Amendment to the United States Consti-
tution, a person has a right “to be secure” from all “unreasonable
… seizures” of his person. U.S. Const. amend IV. J.I.W. does not
challenge Dorminey’s authority to detain him—he argues only the
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force Dorminey used to bring about the detention was excessive.
See Richmond v. Badia, 47 F.4th 1172, 1179–81 (11th Cir. 2022) (dis-
cussing the analytical difference between false arrest and excessive
force claims). The right to be free from unreasonable seizures “in-
cludes the right to be free from the use of excessive force in the
course of an arrest.” Saunders v. Duke, 766 F.3d 1262, 1266–67
(11th Cir. 2014).
But under the doctrine of qualified immunity, “government
officials performing discretionary functions generally are shielded
from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Harlow v. Fitzger-
ald, 457 U.S. 800, 818 (1982). To overcome a qualified immunity
defense, the plaintiff must make two showings. Christmas v. Harris
Cnty., 51 F.4th 1348, 1354 (11th Cir. 2022). First, “the plaintiff must
establish that the defendant violated a constitutional right.” Griffin
Indus., Inc. v. Irvin, 496 F.3d 1189, 1199 (11th Cir. 2007). Second,
“the plaintiff must show that the violation was clearly established.”
Id.
1. Whether T.L.O. Applies to an Excessive Force Claim Originat-
ing in a School Setting Is Immaterial.
Before addressing the facts of this case, we must determine
whether to apply a standard for excessive force specific to schools.
In excessive force cases, we typically determine whether a de-
tainee’s Fourth Amendment rights were violated by asking
“whether the officer’s conduct is objectively reasonable in light of
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the facts confronting the officer.” Vinyard v. Wilson, 311 F.3d 1340,
1347 (11th Cir. 2002). Under Graham v. Connor, the main question
is whether “the force used by a police officer” is “reasonably pro-
portionate to the need for that force.” Ferraro, 284 F.3d at 1198 (ap-
plying Graham v. Connor, 490 U.S. 386 (1989)). But in the school
setting, the Supreme Court recognized that the scrutiny applied to
certain seizures is less demanding. In New Jersey v. T.L.O., the
Court held that “the legality of a search of a student should depend
simply on the reasonableness, under all the circumstances, of the
search.” 469 U.S. 325, 341 (1985) (emphasis added).
As the Court explained in T.L.O., the reasonableness of a
search is a two-part inquiry: we must “first . . . consider whether
the action was justified at its inception,” and then ask “whether the
search as actually conducted was reasonably related in scope to the
circumstances which justified the interference in the first place.” Id.(cleaned up). In the search context, an initial search is justified
when “reasonable grounds” suggest that a student violated “either
the law or the rules of the school.” Id. at 342. And at step two, a
search is reasonable “when the measures adopted are reasonably
related to the objectives of the search and not excessively intrusive
in light of the age and sex of the student and the nature of the in-
fraction.” Id.We have applied T.L.O. to a student’s unlawful detention
claim against a school resource officer. In Gray ex rel. Alexander v.
Bostic, we explained that this Court “appl[ies] the reasonableness
standard articulated in [T.L.O.] to school seizures by law
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enforcement officers.” 458 F.3d 1295, 1304 (11th Cir. 2006) (empha-
sis added). But we did not reach the student’s excessive force claim
in Gray. Id. at 1304 n.6. And circuit courts of appeal do not ex-
pressly apply T.L.O. to excessive force claims. Compare E.W. by
& through T.W. v. Dolgos, 884 F.3d 172, 179–85 (4th Cir. 2018)
(evaluating a school resource officer’s use of force to handcuff a
student without citing T.L.O.), and Hawker v. Sandy City Corp.,
591 F. App’x 669, 674–76 (10th Cir. 2014) (evaluating an officer’s
use of a “twist-lock” against a student without citing T.L.O.), with
C.B. v. City of Sonora, 769 F.3d 1005, 1030 (9th Cir. 2014) (holding
that, under the circumstances, whether T.L.O. or Graham applied
was “of little consequence”).
We have never addressed whether T.L.O or the Graham
standard applies to a school resource officer’s use of force in school,
and we need not do so here. See Badia, 47 F.4th at 1181 n.1 (declin-
ing to address whether T.L.O. or Graham controls the standard for
determining the reasonableness of an initial detention in a school
setting). Instead, we conclude that, here, whether T.L.O. or Gra-
ham applies “is of little consequence.” C.B., 769 F.3d at 1030. In-
deed, there is not much daylight between asking whether Dor-
miney’s conduct was “reasonably related in scope to the circum-
stances which justified the interference in the first place,” T.L.O.,
469 U.S. at 341, and asking whether his use of force was “reasona-
bly proportionate to the need for that force,” Lee, 284 F.3d 1198.
Both standards consider the initial justification for the force and
measure the officer’s actions against that need. Accordingly, we
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adopt the two-part test promulgated by T.L.O., with Graham guid-
ing our analysis when necessary.
2. Dorminey’s Use of Force Against J.I.W. Did Not Become So
Unreasonable as to Violate Clearly Established Law.
Turning to the facts of this case, we cannot conclude that
Dorminey’s use of force violated J.I.W.’s clearly established consti-
tutional rights. J.I.W. makes two arguments that “a reasonable of-
ficer” in Dorminey’s position “would know that his conduct is un-
constitutional under the Fourth Amendment.” Stephens v. DeGio-
vanni, 852 F.3d 1298, 1315 (11th Cir. 2017) (quotation omitted).
First, he argues that relevant caselaw clearly established that Dor-
miney’s conduct violated the constitution. Second, he argues that,
even in the absence of relevant caselaw, it was “obviously clear”
that Dorminey’s conduct was unconstitutional. We disagree.
No one disputes that Dorminey’s actions were justified
when he first detained J.I.W. Indeed, all but one witness statement
indicates that Dorminey witnessed J.I.W. move toward Hinson in
an aggressive manner. Id. Because of this, the district court con-
cluded that the initial seizure was justified, and J.I.W. does not chal-
lenge Dorminey’s initial justification for the seizure on appeal. Cf.
Badia, 47 F.4th at 1184 (where an initial use of force was unjustified
when a student was not resisting, did not pose a threat, and there
was no legitimate law enforcement justification for the force). Dor-
miney witnessed J.I.W. become aggressive, punch a locker, and
turn toward Hinson in an aggressive manner. Further, the amount
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of force used was reasonable. See Saunders, 766 F.3d at 1267. Dor-
miney merely grabbed J.I.W. by the arm, directed him away from
Hinson, and held him there. We agree that this degree of force was
justified.
As the matter escalated, Dorminey applied three additional
types of force. First, he executed two “wristlocks” against J.I.W.
and ordered him to the ground to handcuff him. Second, Dorminey
physically forced J.I.W. to the ground using a more aggressive
wristlock, which broke his arm. And third, he applied handcuffs.
The district court suggested that Dorminey’s actions became un-
reasonable at some point between the third wristlock and J.I.W.
hitting the ground, and it permitted J.I.W.’s claims to proceed
based on these actions. For his part, J.I.W. argues that the law is
clearly established “that an unarmed arrestee who neither attempts
to flee nor resists arrest cannot be subjected to force that causes
severe physical injuries and emotional harm.”
We cannot agree with the district court or J.I.W. because we
believe the record establishes that J.I.W. was resisting. The com-
plaint asserts that J.I.W. “never actually touched, or threatened to
touch, any student, teacher, administrator, or defendant Dorminey
in an offensive manner[,]” and “never attempt[ed] to . . . resist de-
fendant Dorminey.” But the witness statements, which were incor-
porated into the complaint without objection, describe J.I.W.’s ac-
tions toward the principal as “bow[ing] up,” “com[ing] at him,”
walking aggressively toward him, or turning back toward him
“with his shoulders back, fist clenched, and chest out lunging in the
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direction of Mr. Hinson.” Likewise, each witness statement de-
scribes J.I.W. resisting Dorminey in some capacity before Dor-
miney’s escalated use of force. The video confirms the accuracy of
the witness statements rather than the allegations in the complaint.
J.I.W. has not argued that we cannot consider these statements or
video and, in fact, relies on them himself.
Because J.I.W. was resisting, J.I.W. cannot point to a mate-
rially similar precedent nor establish that the violation was obvious
enough to defeat Dorminey’s qualified immunity defense. We
have held that an officer violates a non-resisting detainee’s rights
by using force to apply handcuffs. See Hadley v. Gutierrez, 526 F.3d
1324, 1330 (11th Cir. 2008) (a “gratuitous use of force when a crim-
inal suspect is not resisting arrest constitutes excessive force”) (em-
phasis added); see also Smith v. Mattox, 127 F.3d 1416, 1419–20
(11th Cir. 1997) (affirming the denial of qualified immunity where
an officer broke a plaintiff’s arm by handcuffing him although the
plaintiff was not resisting). But, when holding that force used to
carry out handcuffing was excessive, we have expressly acknowl-
edged the plaintiff’s lack of resistance. Smith, 127 F.3d at 1419–20.
For example, although the district court relied on Smith to deny
qualified immunity, we emphasized in that decision that the de-
tainee was “no[t] resis[ting] at all.” Id. at 1420.
J.I.W. also cannot establish that Dorminey’s conduct was
unlawful under the “obvious-clarity” test. To meet this standard,
an officer’s conduct must be so severe that every reasonable officer
would have known the conduct was unlawful. Gray, 458 F.3d at
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1307 (citing Evans v. Stephens, 407 F.3d 1272, 1283 (11th Cir. 2005)
(en banc)). Our precedents do not indicate that handcuffing a re-
sisting detainee is obviously unlawful. In fact, they establish the op-
posite. Handcuffing is a de minimis use of force. See Sebastian v.
Ortiz, 918 F.3d 1301, 1308 (11th Cir. 2019) (“We have applied the
de minimis force principle to handcuffing and granted officers qual-
ified immunity in a series of cases.”). This is because handcuffing
“carries with it the right to use ‘some degree of physical coercion
or threat thereof,’ and ‘the typical arrest involves some force and
injury.’” Id. (quoting Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th
Cir. 2002)). J.I.W. successfully resisted Dorminey’s wristlock two
times. In response, Dorminey applied more force until he over-
came J.I.W.’s resistance. Not every reasonable officer in Dor-
miney’s position would have believed that, in the face of such re-
sistance, the force he used was unreasonable.
Our sister circuits’ caselaw supports our conclusion. The
Eighth Circuit held in K.W.P. v. Kansas City Public Schools that an
officer did not violate a student’s constitutional rights by handcuff-
ing him. 931 F.3d 813, 826 (8th Cir. 2019). The reason: the student
was resisting the officer and attempting to flee. Id. at 826–27. The
court in K.W.P. cited an unpublished Tenth Circuit decision reach-
ing the same result. Id. (citing Hawker, 591 F. App’x at 675). In
Hawker, the Tenth Circuit held that an officer did not use excessive
force when he applied a “twist-lock,” which was meant to “pain-
fully, but without intentional injury, distract the suspect from what
he is doing (fighting or resisting),” to a resistant nine-year-old
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18 Opinion of the Court 21-12330
suspected of theft. 591 F. App’x at 671 & n.1. The force was reason-
able, even though it resulted in a “possible hairline fracture” of the
child’s collarbone, id. at 671, because the child was resisting the of-
ficer, id. at 675 (“[G]iven [the child’s] resistance, [the officer’s] ac-
tions in this case simply do not rise to the level of a constitutional
violation.”).
Where other circuits have held that handcuffing a student
was excessive, it was because, unlike J.I.W., the student was not
resisting. In C.B., the Ninth Circuit held that an officer uses exces-
sive force by placing “handcuffs on a calm, compliant, but nonre-
sponsive 11–year–old child” with no justification other than “an as-
sertion that they were told C.B. might run away.” 769 F.3d at 1030.
In E.W., the Fourth Circuit held that handcuffing “a calm, compli-
ant ten-year-old . . . on school grounds because she hit another stu-
dent during a fight several days prior” was excessive. 884 F.3d at
180. And in Williams v. Morgan, the Sixth Circuit denied qualified
immunity to an officer who “confronted” a thirteen-year-old stu-
dent about an incident earlier in the day, orally threatened the stu-
dent, “seize[d] her physically by pushing her up against the hallway
lockers, bending her left arm behind her back, and eventually com-
pell[ed] her submission via this restraint.” 652 F. App’x 365, 367 (6th
Cir. 2016). She was not resisting. Id. at 371. The Sixth Circuit deter-
mined that a jury could find that the force was excessive because it
resulted in a broken arm and because the officer “maintained this
physical restraint and pressure on her broken arm, despite her pleas
for relief, all the while threatening or menacing her verbally.” Id.
USCA11 Case: 21-12330 Date Filed: 12/01/2022 Page: 19 of 23
21-12330 Opinion of the Court 19
at 374. Accordingly, these decisions, and our own, counsel against
us holding that the right here was clearly established.
The same can be said of Dorminey’s action of forcibly taking
the resisting J.I.W. to the ground. It was not clearly established at
the time of the incident that taking a physically resistant middle
schooler to the ground to carry out handcuffing was unconstitu-
tional. To be sure, our decisions make clear that applying force to
an already handcuffed and under control detainee can be excessive.
It is excessive to “grab[]” a handcuffed arrestee “forcibly enough to
bruise her arm and breast and then us[e] pepper spray” on the ar-
restee. Vinyard, 311 F.3d at 1349. It is excessive to “slam[] [an ar-
restee’s] head against [a car] trunk after she was arrested and se-
cured in handcuffs.” Lee, 284 F.3d at 1198. And it is excessive to
beat a handcuffed arrestee that is not resisting. Slicker v. Jackson,
215 F.3d 1225, 1233 (11th Cir. 2000). But the line between reasona-
ble and excessive force is marked by the resistance of the detainee
and the potential threat posed to the arresting officers. For that rea-
son, those authorities do not apply here. J.I.W. resisted Dorminey
all the way to the ground.
B. J.I.W.’s Alabama Assault and Battery Claims
The district court declined to dismiss J.I.W.’s state law tort
claims for assault and battery. It did so under the assumption that
federal jurisdiction existed. However, the dismissal of J.I.W.’s ex-
cessive force claim eliminates any independent basis for federal ju-
risdiction. The sole remaining question on appeal is whether
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20 Opinion of the Court 21-12330
Dorminey is entitled to state agent immunity against state law tort
claims. “[T]he courts of Alabama are in the best position to under-
take and, for reasons of federalism, should undertake” that inquiry.
Nolin v. Isbell, 207 F.3d 1253, 1258 (11th Cir. 2000). We conclude
that the district court should dismiss J.I.W.’s state law tort claims
so that he may pursue them, if at all, in state court.
IV. CONCLUSION
For these reasons, we REVERSE IN PART the district
court’s denial of Dorminey’s Motion to Dismiss. We REMAND for
further proceedings consistent with this opinion.
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21-12330 BRASHER, J., Concurring 1
BRASHER, Circuit Judge, Concurring:
I concur in the Court’s opinion. I write separately to address
a foundational issue that the parties did not raise, but that compli-
cates our review: whether the district court correctly considered
the witness statements and surveillance video in ruling on J.I.W.’s
motion to dismiss.
Dorminey’s arguments rely extensively on witness state-
ments and the video, which he says J.I.W.’s complaint incorporates
by reference as exhibits. Indeed, most of what we know about the
incident between Dorminey and J.I.W. comes, not from the com-
plaint, but from these extrinsic sources. Some parts of these witness
statements and the video contradict the complaint’s allegations.
Other parts merely supplement those allegations.
The district court determined that it could consider the ex-
hibits and video as they were incorporated by reference into the
complaint. J.I.W. did not dispute that the statements and the video
were incorporated into the complaint, nor did he argue that they
should not supersede his more general allegations in the complaint.
J.I.W. also does not challenge on appeal the district court’s reliance
on the exhibits. Further, J.I.W. relied on the exhibits extensively in
his own brief on appeal.
I don’t believe the doctrine of incorporation by reference is
as simple as the parties believe it to be. For example, it appears we
have never addressed, in a published precedential opinion, the
question whether audiovisual evidence can be incorporated by
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2 BRASHER, J., Concurring 21-12330
reference. But see Quinette v. Reed, 805 F. App’x 696, 700 (11th
Cir. 2020) (nonprecedential opinion allowing incorporation of
video evidence into complaint), cert. denied, 141 S. Ct. 2700 (2021).
The source of our incorporation by reference jurisprudence is Fed-
eral Rule of Civil Procedure 10(c), and it states only that “[a] copy
of a written instrument that is an exhibit to a pleading is a part of
the pleading for all purposes.” Fed. R. Civ. P. 10(c)(emphasis
added). Although there may be some other basis to incorporate a
video into a complaint, a video is not a “written instrument.” See
generally Bogie v. Rosenberg, 705 F.3d 603, 609 (7th Cir. 2013) (al-
lowing video evidence to be considered because, “[w]hen an ex-
hibit incontrovertibly contradicts the allegations in the complaint,
the exhibit ordinarily controls, even when considering a motion to
dismiss”); Bailey v. City of Ann Arbor, 860 F.3d 382, 386 (6th Cir.
2017)(same); Aimee Woodward Brown, Pleading in Technicolor:
When Can Litigants Incorporate Audiovisual Works into Their
Complaints?, 80 U. CHI. L. REV. 1269, 1276 (2013)(discussing
grounds for considering video evidence on a motion to dismiss).
The unsworn witness statements present an even more se-
rious problem. We have held that we may consider a document
“beyond the face of the complaint” in ruling on a motion to dis-
miss, where the “plaintiff refers to a document in its complaint, the
document is central to its claim, its contents are not in dispute, and
the defendant attaches the document to its motion to dismiss.” Fin.
Sec. Assur. Inc., v. Stephens, Inc., 500 F.3d 1276, 1284 (11th Cir.
2007). Under this rule, we have applied the doctrine of
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21-12330 BRASHER, J., Concurring 3
incorporation by reference to various types of documentary evi-
dence, including contracts, affidavits, and newspaper articles. See,
e.g., Cisneros v. Petland, Inc., 972 F.3d 1204, 1213 (11th Cir. 2020)
(considering an affidavit incorporated when the plaintiff quoted
from it in her complaint). But, applying this rule to this case, it is
hard to see how any of these witness statements are central to the
plaintiff’s claims, given that they merely present the opposing
party’s view of the incident. And I am skeptical that the rules allow
unsworn witness statements—which would not even be admissible
at summary judgment—to contradict the allegations in a plaintiff’s
complaint about the events recounted therein.
Nonetheless, despite my skepticism, I agree with the Court’s
opinion because both parties have asked us to consider these doc-
uments and the video. Indeed, J.I.W.’s brief quotes extensively
from Dorminey’s unsworn witness statement as if we should con-
sider it, not J.I.W.’s complaint, as the operative pleading. Accord-
ingly, this issue has been roundly and intentionally forfeited. See
Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1319
(11th Cir. 2012); Fed. Sav. & Loan Ins. Corp. v. Haralson, 813 F.2d
370, 373 n.3 (11th Cir. 1987).