Tina M. Lepone-Dempsey v. Carroll County Comm. ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-13547 December 16, 2005
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 03-00043-CV-JTC-3
TINA M. LEPONE-DEMPSEY,
SHANNON M. ALEXANDER,
Plaintiffs-Appellees,
versus
CARROLL COUNTY COMMISSIONERS,
et al.,
Defendants,
PHILLIP WAGNER, Sheriff, acting
individually and as an agent
for Carroll County Sheriff's
Department,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 16, 2005)
Before CARNES, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Carroll County Sheriff’s Deputy Phillip Wagner appeals from a district court
order denying his motion for summary judgment on the basis of qualified
immunity. We find no reversible error, and therefore affirm.1
Plaintiff Tina Lepone-Dempsey asserts, inter alia, 42 U.S.C. § 1983 claims
against members of the City of Villa Rica Police Department and Carroll County
Sheriff’s Department (including Deputy Wagner), as well as several Carroll
County Commissioners, for violations of Plaintiff’s federal constitutional rights.2
The alleged violations occurred when the law enforcement officers, some of whom
claimed to have arrest warrants, sought to effect the arrest of Chris Dempsey
(Plaintiff’s husband) and Randall Willoughby in and around the double-wide
mobile home occupied by Plaintiff.
Although the Villa Rica Defendants obtained a dismissal of all claims
against them under Federal Rule of Civil Procedure 12(b)(5), the Carroll County
1
Notwithstanding the interlocutory nature of an appeal from a denial of summary
judgment sought on the basis of qualified immunity, we have jurisdiction over the appeal so long
as it concerns issues that involve the core qualified immunity analysis, and not merely challenges
to the sufficiency of the evidence on a predicate factual element of the alleged underlying
constitutional torts. See Behrens v. Pelletier, 516 U.S. 299, 305-06, 116 S. Ct. 834, 838-39, 133
L. Ed. 2d 773 (1996); Koch v. Rugg, 221 F.3d 1283, 1294-97 (11th Cir. 2000).
2
Although Plaintiff Dempsey’s daughter, Shannon Alexander, is also a named plaintiff
and appellant, Alexander’s claims are not actually at issue in this appeal.
2
Defendants answered Plaintiff’s Complaint and, after some discovery, moved for
summary judgment on several grounds, including qualified immunity. With
respect to Deputy Wagner, the district court determined that Plaintiff had alleged
claims against him for unlawful arrest, excessive force, and an unlawful search, all
in violation of the Fourth Amendment. The district court denied Wagner summary
judgment on these issues, however, for the following reasons: (1) the evidence,
viewed in the light most favorable to Plaintiff, indicated that Wagner and the other
officers had no warrant, did not obtain consent to enter Plaintiff’s home, and did
not enter the home because of exigent circumstances; (2) although the evidence did
not create a fact issue as to whether Wagner personally participated in Plaintiff’s
arrest, he could still be held liable on a failure to intervene theory; (3) there was no
indication that the law enforcement officers had an arrest or search warrant at the
time Wagner went through Plaintiff’s bedroom furniture; and (4) the exception to
the search warrant requirement for protective sweeps incident to lawful arrests did
not apply to Wagner’s pre-arrest conduct, and his search exceeded a protective
sweep’s scope.
On appeal, Wagner challenges the district court’s decision only with respect
to the claims of unlawful arrest and excessive force. He contends that: (1) the
district court erred in determining that Plaintiff alleged a unlawful arrest claim
3
against him under the Fourth Amendment; (2) Plaintiff’s excessive force claim is
not properly subsumed into the unlawful arrest claim; and (3) even if the unlawful
arrest and excessive force claims were properly raised, he is still entitled to
qualified immunity. “We review de novo the district court’s decision denying
qualified immunity, drawing all factual inferences in the nonmovant’s favor.”
Bennett v. Hendrix, 423 F.3d 1247, 1249 (11th Cir. 2005).3
Qualified immunity insulates government officials from personal liability
under § 1983 for actions taken pursuant to their discretionary authority. Cooper v.
Dillon, 403 F.3d 1208, 1220 (11th Cir. 2005). However, “[g]overnment officials
acting within their discretionary authority are ineligible for qualified immunity
from suit when the facts [t]aken in the light most favorable to the party asserting
the injury . . . show the officer’s conduct violated a constitutional right’ and ‘the
right was clearly established.” Bennett, 423 F.3d at 1250 (internal quotations
omitted). It is uncontroverted that Wagner was at all relevant times acting pursuant
to his discretionary authority. Under our precedent then, the burden lay with
3
“Summary judgment is appropriate only if there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law.” Castleberry v. Goldome Credit
Corp., 418 F.3d 1267, 1271 (11th Cir. 2005); see Fed. R. Civ. P. 56(c). “If the judgment entered
is correct, we may affirm the district court ‘on any legal grounds regardless of the grounds
addressed, adopted or rejected by the district court.’” Novak v. Irwin Yacht and Marine Corp.,
986 F.2d 468, 470 (11th Cir. 1993) (quoting Bonnani Ship Supply, Inc. v. United States, 959 F.2d
1558, 1561 (11th Cir. 1992)); see Regions v. Provident Bank, Inc., 345 F.3d 1267, 1274 (11th
Cir. 2003) (explaining that we may affirm a grant of summary judgment on any ground fairly
supported by the record).
4
Plaintiff to establish a constitutional violation. See id.First of all, having reviewed the complaint and the decision of the district
court, we find no reversible error in the court’s determination that a claim of
unlawful arrest in violation of the Fourth Amendment was sufficiently alleged on
the face of the complaint.4 Likewise, we find no error in the district court’s
conclusion that Plaintiff’s excessive force claim is predicated solely on the
officers’ actions in arresting her–and that because there are genuine issues of fact
on whether the arrest was lawful, the claim of excessive force may simply go to the
issue of damages on Plaintiff’s unlawful arrest claim rather than stand alone. See
Jackson v. Sauls, 206 F.3d 1156, 1171 (11th Cir. 2000) (“[A] claim that any force
during a false arrest is excessive is subsumed in the false arrest claim itself because
damages for false arrest include damages for use of force to effect that false
arrest.”) (citing Williamson v. Mills, 65 F.3d 155, 158-59 (11th Cir. 1995) (per
curiam)).
Wagner does not contest the district court’s finding that Plaintiff failed to
produce evidence sufficient to create a genuine issue of fact on whether Wagner
4
This is not, for example, a case where the government official adequately responded to
all claims reasonably apparent from the complaint, and the district court then “divine[d] another
claim by which the plaintiff [might] defeat qualified immunity.” GJR Invs., Inc. v. County of
Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998).
5
personally participated in her arrest.5 Wagner disagrees, however, that Plaintiff
can advance a viable failure to intervene theory, because Wagner believes that this
allegation was not properly plead in Plaintiff’s complaint. Again, we have
reviewed the complaint and the district court’s order, and find no reversible error
in the court’s determination that Wagner received adequate notice from the outset
of the case that Plaintiff might pursue a failure to intervene theory of liability. See
Priester v. City of Riviera Beach, Fla, 208 F.3d 919, 924 (11th Cir. 2000)
(explaining that officer can be liable for failing to intervene when another officer is
using excessive force and the non-participating officer is in a position to intervene
but fails to do so).
Even if Plaintiff adequately alleges a federal unlawful arrest claim and
failure to intervene theory of liability, Wagner maintains, the district court still
erred in denying qualified immunity. Plaintiff, Wagner argues, failed to cite any
authority giving Wagner “fair warning” that Plaintiff had a constitutional right (if
any) to demand to see a copy of the arrest warrant that was the purported basis for
the officers’ entry into the mobile home. See Bennett, 423 F.3d at 1255 (“A right
is clearly established if, in light of already existing law, the unlawfulness of the
5
Plaintiff disagrees with this finding in her brief, but did not attempt to cross-appeal the
issue. We note that there is evidence Wagner was present during Plaintiff’s arrest and provided
his handcuffs to another officer for use in the arrest.
6
conduct is apparent.”) (internal quotations omitted). However, it was clearly
established that, absent consent or exigent circumstances, a law enforcement
officer could not make a warrantless entry into a suspect’s home in order to make a
routine felony arrest. See Payton v. New York, 445 U.S. 573, 576, 100 S. Ct. 1371,
1374-75, 63 L. Ed. 2d 639 (1980).6 Here, there are genuine issues of fact as to
whether the law enforcement officers had a warrant of any kind at the time of
Plaintiff’s arrest.7 Thus, Wagner’s focus on whether he was constitutionally
required to show the warrant is not dispositive.
Wagner also contends that a reasonable officer in his position would have
believed that there was probable cause to arrest Plaintiff when she became
belligerent, because “[u]nder Georgia law, it is unlawful to knowingly and
willfully obstruct or hinder any law enforcement officer in the lawful discharge of
his official duties.” Draper v. Reynolds, 369 F.3d 1270, 1276 (11th Cir. 2004)
(citing O.C.G.A. § 16-10-24(a)), cert. denied, __ U.S. __, 125 S. Ct. 507, 160 L.
Ed. 2d 373 (2004). However, genuine issues of fact precluded a summary
6
It was also clearly established that, absent consent or exigent circumstances, a law
enforcement officer could not legally search for the subject of an arrest warrant in the home of a
third party without first obtaining a search warrant. See Steagald v. United States, 451 U.S. 204,
205-06, 101 S. Ct. 1642, 1644, 68 L. Ed. 2d 38 (1981).
7
Although Wagner claims that at one point he had arrest warrants in his hand, it appears
that no warrant was shown to Dempsey when the officers entered her home (or even prior to her
arrest), and that none was produced in the record.
7
determination that the law enforcement officers in the instant case were engaging
in the lawful discharge of their official duties when they arrested Plaintiff inside
her home.8
Finally, Wagner argues that there was no clearly established duty at the time
of Plaintiff’s arrest for a law enforcement officer to intervene in order to stop an
unlawful arrest; only a duty to intervene to stop the use of excessive force. See
Priester, 208 F.3d at 927. Our precedent suggests, as Wagner points out, that the
duty to intervene does not necessarily extend to every conceivable situation
involving a constitutional violation. See, e.g., Jones v. Cannon, 174 F.3d 1271,
1286 (11th Cir. 1999) (“There is no controlling authority clearly establishing that
once a police officer knows another officer has fabricated a confession in a police
report for a warrantless arrest, that police officer has a constitutional duty to
intervene to stop the other officer’s conduct.”). However, given our holding in
Jackson–that a claim of excessive force predicated on the unlawfulness of an arrest
is subsumed into an unlawful arrest claim–we do not believe the district court erred
in concluding that a duty to intervene in an unlawful arrest was clearly established.
Having reviewed the briefs, the district court’s order, and the record, we find
8
There is authority for the proposition that Georgia law permits a person to resist an
unlawful arrest. See, e.g., Gainor v. Douglas County, Ga., 59 F. Supp. 2d 1259, 1281 n.23 (N.D.
Ga. 1998) (citing cases).
8
no reversible error. Accordingly, we affirm the judgment of the district court.
AFFIRMED.
9