Jeffrey Davis v. Bim Lowers , 132 F. App'x 302 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 04-12816 ELEVENTH CIRCUIT
MAY 23, 2005
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK
D. C. Docket No. 03-00223-CV-ORL-18JGG
JEFFREY DAVIS,
Plaintiff-Appellant,
versus
BIM LOWERS,
PATRICK GILLICK, Deputy Sheriffs, Orange County Sheriff’s Office, in their
individual and official capacities.
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
----------------------------------------------------------------
(May 23, 2005)
Before EDMONDSON, Chief Judge, TJOFLAT and DUBINA, Circuit Judges.
PER CURIAM:
Jeffrey Davis, a Florida prisoner proceeding pro se, appeals the district
court’s grant of summary judgment in favor of Orange County Deputy Sheriffs
Bim Lowers and Patrick Gillick (“Defendants”), in this 42 U.S.C. § 1983 action
alleging Defendants used excessive force during Davis’s arrest. No reversible
error has been shown; we affirm.
The facts in the light most favorable to Davis show that, while patrolling on
the evening of 7 June 2000, Defendants stopped at a gas station to talk to William
Siders, a person they were looking for in connection with a sexual battery
investigation. Siders was near a car containing several passengers, including
Davis. After one of the passengers briefly opened a door, Gillick stated he
smelled the odor of cannabis coming from the car. According to Davis, the car he
was riding in began to pull out of the gas station; but Gillick motioned them back.
Davis claimed he then began placing his shoes on. But Gillick thought he
saw Davis “making furtive movements inside of the car . . . putting his hands
between his legs as if shoving something beneath him and reaching towards his
feet on the floorboard of the vehicle.” And Lowers stated that he observed Davis
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stuffing several small baggies of cannabis behind the back seat head rest of the
car.
According to Davis, Gillick then approached the car and asked the driver for
her license. At that moment, Davis asserted that he tried to get out of the car “to
ask what the problem was.” When he placed his left leg out of the car door,
Gillick slammed the car door on his leg. Despite Davis yelling, “My leg, my leg,”
Gillick slammed the car door on Davis’s leg four or five times, with Lowers
assisting one time. Davis attempted to push the car door open while Gillick held
the door on his leg. Defendants then allegedly pulled Davis from the car,
“slammed [him] face down on the pavement,” and handcuffed him. Davis claimed
that he was handcuffed so tightly (1) that the teeth of the handcuff “caught
between the skin on [his] right wrist and the inside of the handcuff” and (2) he
“lost feeling in [his] hands” after five minutes.
Defendants stated that Davis got to his feet and began to run away after the
deputies turned their attention to other suspects. Davis admitted that he “did run”
after he was handcuffed because he wanted to step on money that had fallen from
his pocket to keep it from blowing away. Defendants chased Davis and secured
him in the back of the patrol car. An emergency medical technician (EMT) arrived
and examined a bump and cut over Davis’s eye, but Davis claimed that the EMT
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refused to look at his leg. Cocaine and cannabis were found in the car in which
Davis was a passenger.1
While Davis was in the patrol car, he complained to Lowers that the
handcuffs were too tight. Lowers told him “to[o] bad,” even after allegedly seeing
that Davis’s wrists were bleeding. Davis claimed that Defendants left him
handcuffed in this manner for over six hours: nearly five hours in the patrol car
and over an hour more at the police station. Davis indicated that, when he arrived
at the jail, he was treated for injuries to his head, leg, and wrists, but was informed
by medical staff that “there was nothing more they could do for [his] injuries but
give them time to heal.” Davis claims that now he has permanent scars on his leg
and wrists.
Davis argues that genuine issues of material fact exist about the
circumstances of his arrest, requiring a credibility determination by a jury and
precluding summary judgment. He claims that Defendants used needless and
excessive force during and after his arrest, and that the district court thus should
not have determined that Defendants were entitled to qualified immunity.
1
Davis later was found guilty by a jury of cocaine possession, resisting an officer without
violence, and escape during transport.
4
We review the district court’s rulings on a motion for summary judgment de
novo; we view all evidence and factual inferences therefrom in the light most
favorable to the non-moving party. Miller v. King, 384 F.3d 1248, 1258-59 (11th
Cir. 2004). Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).2
Qualified immunity protects from liability government officials sued in their
individual capacities if their conduct “does not violate clearly established statutory
or constitutional rights of which a reasonable person would have known.”
Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting Harlow v.
Fitzgerald, 102 S.Ct. 2727, 2738 (1982)).3 “An officer will be entitled to qualified
immunity if his actions were objectively reasonable, that is if an objectively
2
Davis attaches to his appellate brief several affidavits from other occupants of the car. He did
not present these documents to the district court: they are outside the record on appeal and we do not
consider them. See Fed.R.App.P 10(a) (record on appeal consists of, among other things, “the
original papers and exhibits filed in the district court”) (emphasis added).
3
Davis voluntarily withdrew his claims against Defendants in their official capacity. And on
appeal he mentions neither these claims, nor his state law claims: they are abandoned. See Irwin v.
Hawk, 40 F.3d 347, 347 n.1 (11th Cir. 1994) (stating that a pro se litigant abandons an issue by
failing to challenge it on appeal).
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reasonable officer in the same situation could have believed that the force used
was not excessive.” Vinyard, 311 F.3d at 1346.
To receive qualified immunity, the officer first must “prove that he was
acting within the scope of his discretionary authority when the allegedly wrongful
acts occurred.” Id. (citation omitted). Here, no one disputes that Defendants were
acting within the scope of their discretionary authority by arresting Davis and
transporting him to the jail. The burden then shifts to Davis to show that qualified
immunity is not appropriate. The threshold inquiry is whether Davis’s allegations,
if true, establish a constitutional violation. Id. We conclude that Davis has not
shown a constitutional violation.4
The use of excessive force in carrying out an arrest constitutes a violation of
the Fourth Amendment. Graham v. Connor, 109 S.Ct. 1865, 1870-71 (1989). But
“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.
at 1871-72. And in this Circuit, “we recognize that the typical arrest involves
some force and injury.” Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th Cir.
2002), cert. denied, 123 S.Ct. 1482 (2003).
4
We need not proceed to the second question: if a constitutional right would have been violated
under Davis’s version of the facts, we next ask whether that right was “clearly established.”
Vinyard, 311 F.3d at 1346.
6
The force used by Defendants during their arrest of Davis did not violate the
Constitution. Viewing the evidence in the light most favorable to Davis, he
suffered injuries: to his left leg, from Defendants slamming the car door against it
several times, to his face, from Defendants forcing him to the pavement to
handcuff him, and to his wrists, from tight and biting handcuffs. But whether an
officer’s acts are reasonable under the Fourth Amendment involves a careful
evaluation of the circumstances of each particular case: specifically, “the severity
of the crime at issue, whether the suspect poses an immediate threat to the safety
of the officers or others, and whether he is actively resisting arrest or attempting to
evade arrest by flight.” Graham, 109 S.Ct. at 1872.
All of these factors weigh heavily in favor of Defendants’ acts. The severity
of the crime at issue -- possession of various narcotics -- was high. Gillick
smelled the aroma of burned cannabis; Lowers thought he saw Davis trying to
conceal baggies of cannabis. And narcotics later were found in the car.
Second, it was reasonable for Defendants to think that Davis posed an
immediate threat. Although Davis claims he only was putting on his shoes when
Defendants approached the car, Gillick thought Davis was making furtive
movements toward his feet, which Gillick interpreted as Davis possibly reaching
for or concealing a weapon. Davis also asserts that he only was trying to get out
7
of the car to “ask what the problem was.” But a reasonable officer forced to make
a “split-second judgment” might attempt to force Davis back into the car,
containing multiple occupants and suspected of containing narcotics, until the
situation was in hand. Graham, 109 S.Ct. at 1872.5
Third, Davis made movements suggesting to a reasonable officer that he
was resisting arrest or trying to flee. He attempted to open the car door while
Defendants were investigating the car. And Davis admits that he started to run to
attempt to catch some money that had fallen from his pockets. A reasonable
officer could perceive this act as an attempt to escape and would keep Davis
restrained securely afterwards. In sum, Defendants’ acts were “‘objectively
reasonable’ in [the] light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation.” Graham, 109 S.Ct. at 1872.
And we note that the injuries Davis suffered do not support a claim that
Defendants’ acts constituted unreasonably excessive force.6 The EMT records
5
The jury verdict on the count of resisting an officer without violence indicates that Davis tried
to get out of the car when instructed to remain in it.
6
Davis alleges that Defendants violated his due process rights by destroying or preventing him
access to certain medical records from the date of his arrest that Davis asserts would have supported
his claims. Davis sought to compel discovery of certain documents he felt were missing. And in
one of his affidavits Davis asserted that Defendants’ counsel had refused to provide medical records
to him. But Davis did not raise properly to the district court the issue he presents now: that
Defendants or their counsel intentionally and in bad faith withheld production of medical records.
We decline to address this argument. See Krys v. Lufthansa German Airlines, 119 F.3d 1515, 1525
8
show that Davis’s only injury was an abrasion over his left eye. Davis suffered, at
worst, some scarring from Defendants’ acts: he admits that jail medical staff told
him “there was nothing more they could do for [his] injuries but give them time to
heal.” See Rodriguez, 280 F.3d at 1352 (“Painful handcuffing, without more, is
not excessive force in cases where the resulting injuries are minimal”). Under the
circumstances of this case, Defendants’ acts do not rise to the level of a
constitutional violation.
AFFIRMED.
n.19 (11th Cir. 1997) (refusing to address issue not fairly raised in a timely fashion in the district
court).
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