Audrey Eileen Morrison v. City of Atlanta , 614 F. App'x 445 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-14616
Non-Argument Calendar
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D.C. Docket No. 1:12-cv-02691-AT
AUDREY EILEEN MORRISON,
Plaintiff–Appellant,
versus
CITY OF ATLANTA,
MAYOR OF THE CITY OF ATLANTA,
CEASAR C. MITCHELL,
OFFICER ROBERT A. BOYD,
OFFICER G. WALKER, et al.,
Defendants–Appellees.
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Appeal from the United States District Court
for the Northern District of Georgia
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(June 9, 2015)
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Before HULL, ROSENBAUM and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Audrey Morrison appeals the district court’s order granting
summary judgment to the City of Atlanta and to Officers Boyd and Walker on her
42 U.S.C. § 1983 claims for excessive force and inadequate medical care. We
affirm.
I. BACKGROUND
A. Facts
We construe the facts in the light most favorable to Morrison, as did the
district court. The facts arise from Morrison’s attendance at a concert at Chastain
Park Amphitheater in August 2010. Morrison attended the Friday night concert
with her husband and one of his co-workers. During the concert, Morrison moved
to approach the stage and noticed a security guard directing other attendees to
move back from the stage. She decided to go up the bleachers, away from the
stage, and smoke a cigarette. On the way up the stairs, someone grabbed her
around the throat and forcefully slammed her down onto the cement. She landed
on the right side of her body and her face hit the cement. It was dark, and she did
not know who attacked her, so she kicked the attacker in defense. She then heard
her husband ask an individual why he slammed his wife to the ground. At that
point, Morrison realized it was an officer. The officer punched her husband in the
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face, knocked him to the ground and then smashed Morrison’s face into the cement
until he secured her with handcuffs. Morrison stated that although she was injured
and in pain, no EMS personnel checked her injuries. She did admit that she and
her husband had been drinking at the concert.
The officer transported Morrison and her husband to a police station.
Morrison did not identify her specific injuries, but claimed that she sustained
abrasions to her face, neck, shoulder, and knee. During the five hours the police
detained her at the station, no one checked her injuries or cleaned her wounds.
During this time, she repeatedly asked to use a restroom, but none of the officers
responded to her request. Eventually, she soiled herself. Morrison stated that no
officer offered her or her husband water during their detention. At some point, her
husband was able to use a restroom and get some water. Morrison asked him to
bring her some water in his mouth. He was able to do that, and he spit the water
into her mouth.
After someone informed Morrison that she was going to jail and would not
be released until Monday, she started “freaking out” and hyperventilating. She
was concerned for her 2 year-old child, who was with a sitter and had a medical
condition that required regular medications. The sitter did not have enough
medicine for the child, and Morrison begged the officers to allow her to call the
sitter, but she received no response. Morrison became so distraught and anxious
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and requested someone help her obtain her medicine, but no one offered to help.
She then began to bang her head on the wall to get attention and treatment.
Eventually, officers transported her to the Fulton County Jail, where she remained
until early the next day, when the authorities released her.
B. Procedural History
Morrison filed her complaint against the City of Atlanta, Officers Boyd and
Walker, Fulton County, and other defendants asserting claims under 42 U.S.C.
§ 1983 and state law for excessive force and inadequate medical care. The Fulton
County defendants and the City defendants moved for summary judgment on all
claims. The district court granted summary judgment to all defendants on all
claims. Morrison filed her notice of appeal. This court granted a joint motion to
dismiss with prejudice the appeal as to the Fulton County defendants.
II. ISSUE
Whether the district court erred in granting summary judgment to the City
defendants on Morrison’s 42 U.S.C. § 1983 claims.
III. STANDARD OF REVIEW
We review the district court’s grant of summary judgment de novo. Myers
v. Bowman, 713 F.3d 1319, 1326 (11th Cir. 2013).
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Like the district court, we “must consider the facts and the justifiable
inferences in the light most favorable to the nonmoving party,” which here is
Morrison. West v. Davis, 767 F.3d 1063, 1066 (11th Cir. 2014). “Summary
judgment may be granted only if there is no genuine dispute of any material fact
and the movant is entitled to judgment as a matter of law.” Id. “An issue of fact is
‘material’ if, under the applicable substantive law, it might affect the outcome of
the case. An issue of fact is ‘genuine’ if the record taken as a whole could lead a
rational trier of fact to find for the nonmoving party.” Harrison v. Culliver, 746
F.3d 1288, 1298 (11th Cir. 2014) (quoting Hickson Corp. v. N. Crossarm Co., 357
F.3d 1256, 1259–60 (11th Cir. 2004)).
IV. DISCUSSION
A. Excessive Force
“The Fourth Amendment’s freedom from unreasonable searches and
seizures encompasses the plain right to be free from the use of excessive force in
the course of an arrest.” Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002).
“Fourth Amendment jurisprudence has long recognized that the right to make an
arrest or investigatory stop necessarily carries with it the right to use some degree
of physical coercion or threat thereof to effect it.” Id. (quoting Graham v. Connor,
490 U.S. 386, 396, 109 S. Ct. 1865, 1871–72 (1989)). This circuit has explained
that the “application of de minimis force, without more, will not support” an
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excessive force claim and will not defeat an officer’s qualified immunity. Nolin v.
Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000). Qualified immunity functions as
immunity from suit, and officials seeking qualified immunity must first establish
that they were acting within their discretionary authority when the alleged
constitutional violation occurred.” Lewis v. City of W. Palm Beach, 561 F.3d 1288,
1291 (11th Cir. 2009). The burden then shifts to the plaintiff, who can overcome
the qualified immunity defense by showing that (1) the defendant’s conduct
violated a constitutional right and (2) this right was “clearly established at the time
of the alleged violation.” Townsend v. Jefferson Cnty., 601 F.3d 1152, 1158 (11th
Cir. 2010).
To prevail on a Fourth Amendment excessive-force claim, the plaintiff must
show both that a seizure occurred and the force used was unreasonable. See
Troupe v. Sarasota Cnty., Fla., 419 F.3d 1160, 1166 (11th Cir. 2005). “The
‘reasonableness’ inquiry in an excessive force case is an objective one: the
question is whether the officer’s actions are ‘objectively reasonable’ in light of the
facts and circumstances confronting him, without regard to his underlying intent or
motivation.” Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243,
1248 (11th Cir. 2004) (emphasis added). As a result, the question whether Officer
Boyd acted unconstitutionally is answered from the perspective of a reasonable
officer.
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The “reasonableness” of a particular use of force must be judged from
the perspective of a reasonable officer on the scene, rather than with
the 20/20 vision of hindsight. . . . The calculus of reasonableness
must embody allowance for the fact that police officers are often
forced to make split-second judgments—in circumstances that are
tense, uncertain, and rapidly evolving—about the amount of force that
is necessary in a particular situation.
Troupe, 419 F.3d at 1168 (quoting Menuel v. City of Atlanta, 25 F.3d 990, 996
(11th Cir. 1994)).
Morrison’s excessive force claim fails. First, in her declaration, she
admitted that she had no idea who slammed her to the ground. Despite this fact,
she submitted no testimony or other evidence (other than her own hearsay
statement) from the one person who allegedly identified Officer Boyd as her
attacker—her husband—in opposition to the defendants’ motion for summary
judgment. On the other hand, Officer Boyd attested that he had no interaction with
Morrison until after she was already on the ground and engaged in an altercation
with private security officers. Morrison offered no competent evidence to refute
Boyd’s statement or to support her conclusory assertion that Officer Boyd was the
individual who slammed her to the ground. Against Officer Boyd’s specific
testimony regarding when his involvement with Morrison began, Morrison’s
conclusory and speculative assertion is insufficient to raise a genuine issue for trial.
See Leigh v. Warner Bros. Inc., 212 F.3d 1210, 1217 (11th Cir. 2000) (holding that
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an affidavit that contains a brief conclusory assertion without supporting facts has
no probative value).
Second, Morrison cannot demonstrate that the force Officer Boyd used to
detain her was objectively unreasonable. Morrison admits that she had been
drinking at the concert, and when Officer Boyd arrived at the scene, Morrison was
struggling with security personnel. Officer Boyd used the force necessary to
subdue Morrison. Moreover, Morrison does not demonstrate that she suffered
more than minor injuries. She does not identify any specific injuries, but contends
that she did not receive medical care to clean her open wounds. Morrison fails to
overcome her burden to show that Officer Boyd is not entitled to qualified
immunity under these circumstances. Accordingly, the district court properly
granted summary judgment to Officer Boyd. 1
B. Inadequate medical care
Morrison alleges that Officers Boyd and Walker provided no medical care
for her injuries at the event facility or in the police precinct and contends that such
conduct violated her constitutional rights.
1
Morrison made no claims as to excessive force against Officer Walker and made no
argument that any other defendant, including the City, should be liable for Officer Boyd’s
conduct. Thus, the district court properly dismissed these claims and granted judgment for
Officer Walker and the City on Morrison’s claim of excessive force.
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Due process requires penal facilities to provide inmates with adequate
medical care. A pretrial detainee’s rights exist under the due process clause of the
Fourteenth Amendment rather than the Eighth Amendment. Nonetheless, this
circuit has applied the Eighth Amendment’s “serious medical needs” analysis to
pretrial detainee’s claims of inadequate medical treatment under the Fourteenth
Amendment. See Hamm v. DeKalb Cnty., 774 F.2d 1567, 1574 (11th Cir. 1985).
To prevail on a deprivation of medical care claim, a prisoner must show that she
suffered a serious medical need, the defendants exhibited deliberate indifference to
that need, and the indifference caused the plaintiff’s injury. See Mann v. Taser
Int’l, Inc., 588 F.3d 1291, 1306–07 (11th Cir. 2009).
Morrison cannot prevail on her claim of inadequate medical care. She does
not present any sufficient evidence that she suffered from “an objectively serious
medical need,” so grave that “if left unattended, pose[d] a substantial risk of
serious harm.” Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000) (internal
quotation marks and alterations omitted). Morrison mentions only that she
suffered facial wounds that were not cleaned and eventually became infected.
These wounds do not constitute a serious medical need. See Duncan v. Corr. Med.
Serv., 451 F. App’x 901, 903 (11th Cir. 2012) (stating that a serious medical need
can be either (1) “one that has been diagnosed by a physician as mandating
treatment or one that is so obvious that even a lay person would easily recognize
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the necessity for a doctor’s attention” or (2) one where “a delay in treating the need
worsens the condition” (quoting Mann, 588 F.3d at 1307)). Accordingly, the
district court properly granted judgment to the officers on Morrison’s inadequate
medical needs claim.
V. CONCLUSION
The district court properly granted summary judgment to the City and the
officers on Morrison’s 42 U.S.C. § 1983 claims of excessive force and inadequate
medical care. The district court also properly dismissed the state law claims of
assault and battery against the City, as it was entitled to sovereign immunity. See
Cameron v. Lang, 549 S.E.2d 341, 346 (Ga. 2001) (sovereign immunity protects
all levels of government from legal action unless they have waived immunity).
Similarly, the district court properly granted official immunity to the officers on
Morrison’s state law claims of assault and battery because she failed to offer any
evidence that either officer acted negligently or with malice. See Gilbert v.
Richardson, 452 S.E.2d 476, 481 (Ga. 1994) (finding that official immunity offers
limited protection from suit to governmental officers and employees); Grammens
v. Dollar, 697 S.E.2d 775, 777 (Ga. 2010) (noting that public officer is personally
liable for acts negligently performed or acts performed with malice or an intent to
injure). Accordingly, we affirm the district court’s grant of summary judgment to
the defendants.
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AFFIRMED.
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