Mark Whittington v. Town of Surfside ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MARCH 17, 2008
No. 07-13143
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 06-21032-CV-ASG
MARK WHITTINGTON,
Plaintiff-Appellant,
versus
TOWN OF SURFSIDE, FL,
a municipality,
PATRICK JOHN GIAMBALVO,
individually,
LUIS PEREZ,
individually,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(March 17, 2008)
Before CARNES, BARKETT and HULL, Circuit Judges.
PER CURIAM:
Mark Whittington appeals the district court’s order granting summary
judgment in favor of defendant Town of Surfside (“Surfside”) on Whittington’s 42
U.S.C. § 1983 claim that he was falsely arrested by Surfside police officers in
violation of the Fourth Amendment. After review, we affirm.
I. BACKGROUND
A. Whittington’s Arrest
We review the facts in the light most favorable to Whittington.
On February 19, 2004, Whittington was waiting at a bus stop in Surfside.
He leaned up against a concrete post which had a bus stop sign attached to it.
When the wind blew, the sign became loose to some extent and hit Whittington in
the face. The force from the sign broke Whittington’s sunglasses. Whittington
then tore the sign from the post and threw it to the ground. Whittington alleges
that he did this so no one else could be injured by the sign.
Several teenagers at the bus stop laughed after seeing the sign hit
Whittington. Whittington had words with them, and they left the bus stop.
Whittington observed one of the members of this group, who was later identified
as Chris Marco, stop and speak with Surfside police officer Luis Perez. According
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to Officer Perez’s police reports, Marco told him that he had observed a white male
wearing an orange Miami Hurricanes sweatshirt tear the bus stop sign from the
pole. Officer Perez then came and stood directly behind Whittington, whose
appearance matched Marco’s description, for the next several minutes until the bus
arrived.1 Officer Perez did not say anything to Whittington or stop him from
boarding the bus.
Whittington boarded the bus and sat near the back of the bus.
Approximately four or five blocks later, two Surfside police cars pulled up beside
the bus and pulled it over. Whittington overheard a conversation between two men
sitting near him who he assumed were construction workers based on their
clothing. Whittington claimed that one told the other, “I can’t take it. You take it.
I’m on parole.” Whittington decided to walk toward the front of the bus.
Whittington thought that the police were stopping the bus because of his earlier
incident with the bus stop sign, and he also wanted to separate himself from the
two men.
After the bus stopped and Whittington started to exit the bus, he was
confronted by six police officers. One of the officers had his gun out and another
was holding a club. One officer said, “get off the bus, you God damn scumbag.”
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In contrast to Whittington’s version of the events, Officer Perez stated in his report that
Whittington had already boarded the bus by the time he reached the bus stop.
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At this point, Whittington had not indicated that he would refuse to exit the bus or
tried to resist the officers in any way.
Two officers, allegedly Officers Patrick Giambalvo and Perez, reached up,
grabbed him by the shirt in his chest area, and pulled him down from the bus. His
momentum carried him from the bus into some hedges in a yard, and the officers
fell on top of him. Whittington felt his knee pop as this happen. Whittington
indicated that, at this point, all of the officers present piled onto him. The officers
kept saying to him, “[g]o ahead, resist, come on, give us a reason.” The officers
handcuffed him and sat him on the sidewalk.
Officer John Fiorito claimed that he observed Whittington throw a white
bottle as he walked toward the front of the bus and relayed this information to
Officer Giambalvo. Officer Giambalvo searched the bus and found a white bottle
that contained a small amount of marijuana. Whittington denies that this bottle
was his and assumes that it belonged to one of the two men who were sitting near
him on the bus.
Whittington was arrested for possession of marijuana and criminal mischief
and issued a notice to appear in court. The charges against Whittington were
ultimately dismissed.2 Although the record reveals that the Assistant State
2
On appeal, Whittington argues briefly that the seizure of marijuana was the fruit of an
unlawful arrest and could not be used against him. Because Whittington did not raise this claim
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Attorney dropped the charges against Whittington because the arresting officer
failed to appear in court, Whittington contends that Officer Perez was present on
his court date.
B. Whittington’s Lawsuit
Whittington filed a complaint in Florida state court alleging multiple state
law and federal constitutional violations, including false arrest, against Surfside, as
a municipality, and Officers Perez and Giambalvo, individually. The defendants
removed the case to federal court and moved to dismiss Whittington’s complaint.
The district court granted the defendants’ motion to dismiss in part and allowed
Whittington to reallege some of his claims in an amended complaint.3 After
Whittington filed a second amended complaint, the defendants moved for summary
judgment. The district court granted summary judgment for the defendants on all
claims.4 Subsequently, Whittington settled his claims against Officers Perez and
in the district court, we decline to address it. Access Now, Inc. v. Southwest Airlines Co., 385
F.3d 1324, 1331 (11th Cir. 2004) (stating rule that this Court generally will not consider an issue
on appeal that was not raised first in the district court).
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The district court dismissed with prejudice Whittington’s state law claims of negligence
and malicious prosecution against Surfside and his federal due process claims against Surfside,
Officer Perez, and Officer Giambalvo. Because Whittington does not challenge these dismissals
on appeal, these claims are now deemed abandoned. Access Now, Inc., 385 F.3d at 1330.
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Specifically, the district court granted summary judgment in favor of the defendants on
Whittington’s claims against (1) Surfside for state law false arrest and false imprisonment and
under § 1983 for false arrest and substantive due process and equal protection violations; and (2)
Officers Giambalvo and Perez under § 1983 for false arrest, excessive force, and substantive due
process and equal protection violations.
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Giambalvo individually. This appeal involves only his § 1983 claim for false
arrest against the Town of Surfside.5
II. DISCUSSION 6
In order to prevail in a § 1983 action, the plaintiff must show a deprivation
of a federal right by a person acting under color of state law. Griffin v. City of
Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). Municipalities and other local
government entities are included among those persons to whom § 1983 applies,
Monell v. Department of Social Services., 436 U.S. 658, 690-91, 98 S. Ct. 2018,
2036 (1978), but may not be held liable on a respondeat superior theory, Board of
County Commissioners v. Brown, 520 U.S. 397, 403, 117 S. Ct. 1382, 1388
(1997).
Instead, to impose § 1983 liability on a municipality, a plaintiff must show:
(1) that his constitutional rights were violated; (2) that the municipality had a
policy or custom that constituted deliberate indifference to that constitutional right;
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Because Whittington only appeals his § 1983 false arrest claim against Surfside, he has
abandoned all other claims on appeal. Access Now, Inc., 385 F.3d at 1330. Further, his
“Summary of the Argument” and “Statement of Issues” pages only reference § 1983, and not
Florida state law, and thus we construe his brief as only appealing his § 1983 claim against
Surfside for false arrest. See APA Excelsior III L.P. v. Premiere Technologies, Inc., 476 F.3d
1261, 1269-70 (11th Cir. 2007) (concluding, based in part on examination of statement of issues
in initial brief, that issue was not clearly raised in initial brief and was thus abandoned).
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We review de novo a district court’s order granting summary judgment. Holloman v.
Mail-Well Corp., 443 F.3d 832, 836 (11th Cir. 2006).
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and (3) that the policy or custom caused the violation. McDowell v. Brown, 392
F.3d 1283, 1289 (11th Cir. 2004). “A policy is a decision that is officially adopted
by the municipality, or created by an official of such rank that he or she could be
said to be acting on behalf of the municipality.” Sewell v. Town of Lake
Hamilton, 117 F.3d 488, 489 (11th Cir. 1997). A custom is a practice that is so
settled and permanent that it takes on the force of law. Monell, 436 U.S. at 691, 98
S.Ct. at 2036.
It is unnecessary to address here whether Whittington’s constitutional rights
were violated by Surfside because he has failed to create a genuine issue of
material fact that there was a custom or policy in Surfside that caused the alleged
constitutional violation. Whittington stated the basis for § 1983 liability against
Surfside in his second amended complaint as follows:
PEREZ fabricated this charge because of a custom and policy that
existed in SURFSIDE wherein citizens such as plaintiff were harassed
by police officers without cause based on their nonconformist and
“hippie-like” appearance, all for the purpose of depriving plaintiff of
his substantive due process rights to be free from unlawful
infringement from unreasonable seizure by police authorities. This
Surfside policy of infringing on the rights of citizens such as plaintiff
took on the form of policemen “staring down” citizens as a form of
intimidation, fabricating witnesses and evidence, and knowingly and
purposefully failing to preserve evidence that would exculpate
accused citizens such as plaintiff.
In support of his allegations of a custom or policy of police harassment in
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Surfside, Whittington proffers only the deposition testimony of current Surfside
Mayor Charles Burkett. In the deposition excerpts submitted by Whittington,
Whittington’s counsel questioned Mayor Burkett regarding a newspaper article
reporting on a September 2006 commission meeting in which Mayor Burkett was
quoted as saying that people in the past had told him that they were afraid of
Surfside police officers and that officers were “intimidating people with their look
and their stares.” Mayor Burkett testified that the quote could be accurate, but he
could not remember for sure if he had said it.
Mayor Burkett further testified that people complained to him about the
Surfside police, particularly an Officer Davis, when he was running for office in
2004. Mayor Burkett testified that he “was hearing that, you know, the S.W.A.T.
teams were coming to houses and harassing people and scaring them” and that his
reaction was that these tactics were “very heavy-handed.” Mayor Burkett further
testified that he was told that there would be police officers in full gear stationed at
every corner of the room at public meetings in Surfside and that his experiences at
meetings was that it “was not a happy situation.”
These anecdotes relayed to Mayor Burkett around the time he was running
for office in 2004 do not create a genuine issue of material fact that there was an
official policy or custom of harassment that caused Whittington’s alleged
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constitutional injury. Mayor Burkett’s testimony does not reference any citizen
complaints about Surfside police officers harassing individuals with a
“nonconformist” or “hippie-like” appearance, fabricating witnesses and evidence,
or failing to preserve evidence that would support Whittington’s claim that there
was an official custom or policy of such. To the extent that Mayor Burkett’s
deposition references a statement he made regarding complaints that police officers
were intimidating people with their stares, the referenced news article from
September 2006, which was a year and a half after the February 2004 incident
here, does not support Whittington’s claim that there was such a policy or custom
of intimidating people with stares in February 2004.
Further, the record contains an affidavit from Mayor Burkett in which he
states that he (1) held no public office in Surfside in February 2004 when the
alleged incident occurred; (2) had no personal knowledge of any Surfside police
internal customs or policies that existed on or before February 19, 2004; and (3) is
not aware of any instances or alleged instances of excessive force or false arrest by
the Surfside police department. Thus, Mayor Burkett’s own affidavit reveals that
he had no actual knowledge of Surfside police policies or customs in February
2004. Even if he did, his knowledge would not necessarily demonstrate that
Surfside officials were on notice of such official policies or customs so as to
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warrant holding Surfside liable here because Mayor Burkett was not a public
employee in Surfside in February 2004.
Therefore, because Whittington has failed to create a genuine issue of
material fact that his alleged constitutional violation was caused by a municipal
custom or policy, we affirm the district court’s grant of summary judgment in
favor of Surfside.
AFFIRMED.
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