Rafael A. Llovera Linares v. Broward Co. Sheriff's , 347 F. App'x 424 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-14674 ELEVENTH CIRCUIT
SEPTEMBER 8, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 06-61082-CV-WPD
RAFAEL A. LLOVERA LINARES,
Plaintiff-Appellant,
versus
BROWARD COUNTY SHERIFF’S OFFICE,
OFFICER FELIX VASCONEZ,
JEREMY GRANT,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 8, 2009)
Before CARNES, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Rafael Linares appeals pro se the judgment against his complaint that
Deputies Felix Vasconez and Jeremy Grant of the Sheriff’s Office of Broward
County, Florida, used excessive force to apprehend Linares. Linares challenges the
denial of his motions to appoint counsel, produce and compel discovery, and
amend his complaint; the summary judgment in favor of Grant; the jury verdict in
favor of Vasconez; and the denial of his motion for a new trial. We affirm.
I. BACKGROUND
Our discussion of the background is divided into two parts. We first discuss
the facts that led to Linares’s complaint. We then discuss the parties’ filings and
the ruling of the district court.
A. Linares’s Traffic Offenses and Arrest
As Deputies Vasconez and Grant investigated a traffic accident, they
observed Linares driving on the wrong side of the highway. When Linares drove
his vehicle toward the accident, the deputies signaled for Linares and his passenger
to stop. Linares slowed and drove between the damaged vehicles as Vasconez and
Grant approached Linares’s sport utility vehicle. Linareas then accelerated
suddenly and forced the deputies to move to avoid being hit. Linares’s vehicle
struck Grant on the wrist.
Vasconez and Grant feared Linares posed a danger to the public and pursued
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Linares’s vehicle. Linares maintained his course and eventually turned on a
second street, where he continued to drive against the flow of traffic. Linares then
entered Interstate 95, where he drove at speeds between 80 and 125 miles per hour.
Linares exited Interstate 95 and lost control on the off-ramp, where his vehicle
eventually rested.
Vasconez and Grant approached Linares’s vehicle with their guns drawn,
with Grant walking to the driver’s side and Vasconez walking to the passenger’s
side. Linares suddenly placed his vehicle in drive and sped toward the deputies.
Grant, who was in the path of the vehicle, jumped out of the way and shot at the
vehicle until it was out of range. Vasconez, who could not see Grant but heard
gunfire and feared that Grant had been struck or run over, shot at the vehicle until
he saw Grant.
Vasconez and Grant returned to their patrol cars and chased Linares until he
stopped the vehicle in a parking lot. Linares attempted to flee on foot, but
Vasconez apprehended Linares within a few feet of his vehicle. Vasconez forced
Linares to the ground and handcuffed him. Grant detained the passenger of
Linares’s vehicle.
Both Linares and Grant were treated for their injuries. Linares was treated
for a gunshot wound to his left side, fractures in his right hand, and bruises on his
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face, arms, and legs. Grant received treatment for his right wrist.
B. The Filings by Linares and Deputies Grant and Vascone and the Ruling of the
District Court
Linares filed a complaint that alleged the use of excessive force by the
Sheriff’s Office of Broward County and Deputies Grant and Vasconez. Linares
alleged that Grant and Vasconez shot at him and his vehicle and, after Linares left
his vehicle, he was shot in the abdomen by Vasconez or some other officer.
Linares also alleged that, after he fell to the ground, Vasconez and another officer
jumped on and injured Linares.
Linares moved for appointed counsel and for the production of documents.
Linares requested counsel on the ground that he did not speak English and he had
limited legal knowledge. In his motion to produce, Linares sought to compel
copies of Grant’s and Vasconez’s employment histories; test results on the
projectiles recovered from the vehicle; videos and radio communications made of
the chase and arrest; internal investigation reports of the incident; and internal
policies of the Sheriff’s Office of Broward County regarding the use of excessive
force. A magistrate judge denied both motions, and Linares appealed to the district
court to appoint counsel.
The district court ruled that Linares failed to “show[] that this excessive
force case is so exceptional as to require the assistance of counsel.” The court
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“[found] that Mr. Linares proved himself to be capable of pro se litigation on the
issues at hand at trial.” Linares moved four additional times for the appointment of
counsel, which the district court denied on the same grounds.
After the district court dismissed the complaint against the Sheriff’s Office
of Broward County for failure to state a claim, Grant and Vasconez moved for
summary judgment and argued they were entitled to qualified immunity. The
deputies argued that they were allowed to use deadly force to respond both to
Linares’s attempt to harm Grant and the danger Linares posed to the public. In
their affidavits, Grant alleged that he shot at Linares in self-defense, and Vasconez
alleged that he shot at Linares after Vasconez thought that Grant had been struck
by Linares’s vehicle. The deputies also submitted the affidavit of Deputy Christian
Silva, who pursued Linares on Interstate 95 and saw Grant and Vasconez shoot at
and arrest Linares. Silva stated that both Grant and Vasconez shot at Linares’s
vehicle when it stopped on the off ramp; Vasconez did not draw his weapon or
shoot Linares in the parking lot; and shots were fired only while Linares was inside
his vehicle.
Linares responded that Grant and Vasconez lacked authority to shoot at him
while he was inside his vehicle because it was not being used as a weapon. Linares
alleged that he was drunk and drove through the accident scene under the belief it
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was a traffic safety checkpoint, and that he did not hit Grant with his vehicle.
Linares alleged that neither he nor his passenger were harmed while inside his
vehicle and that he was shot as he surrendered to the police. Linares submitted
with his response fifteen exhibits, including two crime scene reports. In one
report, Detective Caperton opined that a bullet penetrated the rear tailgate of
Linares’s vehicle, traveled through the left rear passenger seat, the driver’s seat,
and Linares, and lodged in the dashboard. In a second report, Detective Berrena
suggested that Linares was shot from the front.
After Grant and Vasconez filed a reply, Linares filed a second response with
additional exhibits, and Grant and Vasconez moved to strike Linares’s second
response. The district court denied the motion, allowed Grant and Vasconez to
oppose the response, and admonished Linares not to “file anything further in
Reply.” Linares filed a third response allegedly to oppose medical records. Grant
and Vasconez moved to strike the response, and the magistrate judge granted that
motion.
Linares moved to amend his complaint to add several defendants. Grant and
Vasconez opposed the motion as untimely. The magistrate judge found that
Linares’s motion was untimely because it was filed three months after the deadline
established in the scheduling order. The district court later dismissed the motion as
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untimely.
The magistrate judge recommended that the district court grant in part and
deny in part summary judgment to the deputies. The magistrate judge
recommended a summary judgment in favor of Grant against the complaint that he
beat Linares in the absence of evidence that Grant was near Linares when he was
apprehended. The judge determined that questions of fact existed about the force
Vasconez used to restrain Linares and whether Grant and Vasconez used excessive
force when they shot Linares. Grant and Vasconez objected to the
recommendation.
The district court adopted the recommendation in part and struck Linares’s
third response. The court granted summary judgment in favor of Grant on the
ground that no evidence established that Grant shot or beat Linares. The district
court denied summary judgment to Vasconez. Linares moved a second time to
amend his complaint; the district court denied the motion as “considerably
untimely.”
The case proceeded to trial and the jury returned a verdict in favor of
Vasconez. Linares moved for a new trial and argued that he was entitled to the
appointment of counsel and the verdict was contrary to the weight of the evidence.
The district court denied the motion and ruled that the case was not so exceptional
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to require counsel and Linares was given assistance throughout the trial; a
reasonable jury could find that Vasconez could use deadly force to respond to
Linares’s erratic and dangerous driving and that Vasconez did not use excessive
force to arrest Linares; and Linares “presented no evidence supporting the
proposition that . . . Vasconez shot” Linares after he stopped his vehicle.
II. STANDARDS OF REVIEW
We apply two standards of review to Linares’s arguments. We review for
abuse of discretion the denial of motions for appointment of counsel, Bass v.
Perrin, 170 F.3d 1312, 1319 (11th Cir. 1999), for discovery, United States v. R&F
Prop. of Lake County, Inc., 433 F.3d 1349, 1355 (11th Cir. 2005), and to amend
pleadings, Smith v. Sch. Bd. of Orange County, 487 F.3d 1361, 1366 (11th Cir.
2007). We review de novo a summary judgment and construe the facts in the light
most favorable to the non-moving party. Skop v. City of Atlanta, GA, 485 F.3d
1130, 1136 (11th Cir. 2007).
III. DISCUSSION
Linares raises five issues for our consideration. All fail. We discuss each in
turn.
A. Linares Was Not Entitled to Counsel.
Linares argues that he was entitled to appointed counsel to assist him with
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complex legal issues and to investigate and present his case, but we disagree.
Although a district court may appoint counsel for any party unable to afford
professional assistance, 28 U.S.C. § 1915(e)(1), prisoners “have no absolute
constitutional right to counsel.” Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir.
1993). Linares cites no exceptional circumstances that established a need for
counsel. See id. Linares’s complaint did not contain a novel or complex claim,
nor did he require assistance to present the essential facts in his complaint. The
district court did not abuse its discretion by refusing to appoint counsel for Linares.
B. Linares Failed to Establish A Right to Further Discovery.
Linares argues that he was entitled to discovery of additional information
admissible under the Rules of Evidence, but we again disagree. Grant and
Vasconez argue that they produced documents in their possession that Linares
requested, and Linares does not mention in his brief any additional evidence he
required to try his case. See Porter v. Ray, 461 F.3d 1315, 1324 (11th Cir. 2006)
(“[T]he discovery rules do not permit [a party] to go on a fishing expedition.”).
We cannot say that the district court abused its discretion by denying Linares’s
motions to produce and compel.
C. Linares Was Not Entitled To Amend His Complaint.
Linares argues that he should have been permitted to amend his complaint to
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include claims that the defendants violated state law, but we disagree. Linares
sought leave to amend long after the time lapsed under the scheduling order and
provided no explanation for his late filings. See Fed. R. Civ. P. 15(a)(2), 16(b).
Linares’s amended complaints were filed after Grant and Vasconez moved for
summary judgment and the delayed filing would have prejudiced the deputies. See
Maynard v. Bd. of Regents of the Div. of the Univs. of the Fla. Dep’t of Educ., 342
F.3d 1281, 1287 (11th Cir. 2003). The district court did not abuse its discretion by
denying Linares’s motion to amend his complaint.
D. Grant Did Not Use Excessive Force Against Linares.
The district court correctly granted summary judgment in favor of Grant.
According to Linares, he was shot after he climbed out of his vehicle and as he was
approached by Vasconez and Silva. Linares could not identify the officer who shot
him and, by all accounts, Grant was on the passenger side of the vehicle when
Linares was allegedly shot. Linares never alleged that Grant participated in or was
in a position to stop the alleged beating by Vasconez. Linares failed to establish
that he suffered an injury inflicted by Grant.
E. We Cannot Review Linares’s Challenge To the Sufficiency of the Evidence.
Linares argues that he was entitled to a new trial and the verdict in favor of
Vasconez is not supported by the evidence, but we cannot review these arguments
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in the absence of a trial transcript. Because “the burden is on the appellant to
ensure the record on appeal is complete, . . . where a failure to discharge that
burden prevents us from reviewing the district court’s decision we ordinarily will
affirm the judgment.” Selman v. Cobb County Sch. Dist., 449 F.3d 1320, 1333
(11th Cir. 2006); see Fed. R. App. P. 10(b)(1). Linares filed a transcript order form
on which he represented that “all necessary transcripts are on file” and stated that
he had requested all necessary transcripts in his notice of appeal. A review of
Linares’s notice of appeal and amended notice establishes that he did not request
that the district court transcribe any of his trial proceedings. Although we construe
liberally pro se filings, “even in the case of pro se litigants this leniency does not
give a court license to serve as de facto counsel for a party.” GJR Invs., Inc. v.
County of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998). Because we are
unable to conduct a meaningful review of the verdict without a transcript of the
trial, we affirm the judgment against Linares.
IV. CONCLUSION
We AFFIRM the judgment against Linares.
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