Neal Everett Nicarry v. Michael Cannaday , 260 F. App'x 166 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 19, 2007
No. 07-11679 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00087-CV-ORL-28-DAB
NEAL EVERETT NICARRY,
Plaintiff-Counter-Defendant-Appellant,
versus
MICHAEL CANNADAY,
individually and in his official capacity
as a Deputy Sheriff of Seminole County,
DONALD ESLINGER,
in his official capacity as
Sheriff of Seminole County, Florida,
Defendants-Counter-Claimants-Appellees,
LAWRENCE PIERRE SMITH,
individually and in his official capacity as
a Trooper of the Florida Highway Patrol, et al.,
Defendant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 19, 2007)
Before HULL, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Neal Everett Nicarry, a Florida prisoner proceeding pro se, appeals the
district court’s order granting summary judgment to defendants Deputy Michael
Cannaday and Sheriff Donald Eslinger on Nicarry’s 42 U.S.C. § 1983 claims of
use of excessive force and failure to properly train and supervise. After review, we
affirm.1
I. BACKGROUND
This action arose out of an attempt by defendant Cannaday to stop the van
plaintiff Nicarry was driving and the resulting foot pursuit when Nicarry
abandoned the van and fled. At approximately 10:45 p.m. on November 20, 1998,
plaintiff Nicarry was driving his brother’s van in a residential neighborhood while
drinking a beer. Nicarry had been drinking and smoking crack cocaine earlier in
1
We review de novo a district court’s grant of summary judgment based on qualified
immunity, viewing all evidence and reasonable inferences in a light most favorable to the non-
moving party. Carr v. Tatangelo, 338 F.3d 1259, 1266 (11th Cir. 2001). While many of the
facts are disputed, we outline the version of the facts most favorable to Nicarry.
2
the day and was “coming down.” Also, Nicarry’s driver’s license was suspended.
Seminole County Deputy Cannaday observed Nicarry run a stop sign and
turned on his patrol car’s overhead lights to effect a traffic stop of Nicarry’s van.
Nicarry did not pull over. Instead, Nicarry sped up because of his suspended
license and the open container of alcohol in the van.
Nicarry drove the van onto two highways before turning into a residential
neighborhood. Nicarry drove in the residential area and then abandoned the van
and fled on foot in hopes of evading police. By this time two patrol cars and a
helicopter pursued him.
Nicarry ran into a residential backyard and jumped over several fences.
Cannaday pursued Nicarry on foot, yelling at Nicarry to stop. Several other patrol
units, including a canine unit, arrived and began to search for Nicarry.
Approximately thirty minutes into the foot chase, Nicarry found a shed in a
small backyard with a swimming pool. Nicarry decided to hide in the shed, which
had a single door that opened out into the yard and had a window on its right side.
The shed’s door was held shut with an eight-inch screwdriver. Inside the shed was
a lawnmower. After Nicarry entered the shed, he kept the screwdriver in his hand
and lay down on the floor.
Nicarry was in the shed for approximately twenty to thirty minutes when
3
Trooper Lawrence Smith walked past the shed and shined a light in the window.
When Smith first entered the yard, the homeowner told Smith that he fastened the
shed door with a screwdriver. Smith looked through the shed window, saw
Nicarry crouched inside and ordered him to come out. Smith opened the shed
door, backed up several steps facing the door, but slightly to the right,
approximately ten feet from the door and drew his gun. Smith shined his flashlight
into the shed and again commanded Nicarry to come out.
By this time other law enforcement officers were joining Smith around the
shed, including defendant Cannaday, who also drew his gun. There are slightly
differing accounts as to precisely where Cannaday was standing in relation to
Smith and the shed. However, no one disputes that Cannaday was one of the five
officers clustered roughly in a half circle around the shed door when Smith ordered
Nicarry to come out.2
Five or ten seconds after Smith again commanded Nicarry to come out of the
shed, Nicarry grabbed the screwdriver in his right hand, rose up, stepped on top of
2
Although Nicarry believed from the location of his gunshot wound that Cannaday must
have been positioned to Nicarry’s right and somewhat behind him, Nicarry admitted that he
could not see the officers as he exited the shed because a flashlight was shining in his face and
he had no independent knowledge of where any of the officers were standing. No other witness
placed Cannaday behind Nicarry as Nicarry exited the shed. Cannaday testified that he
positioned himself to the left of Smith almost in front of the shed door.
4
the lawnmower and leaped out of the shed.3 Nicarry is a large man, weighing
approximately 240 pounds and standing six feet, three inches tall. Nicarry burst
out of the shed, running as fast as he could straight ahead, with the screwdriver still
in his hand.4
As Nicarry ran out of the shed, Cannaday saw that Nicarry had an object in
his hand and heard someone say “drop the screwdriver.” 5 Nicarry was fairly close
to Cannaday and Smith, both of whom believed Nicarry might stab them. All five
officers present at the scene, including Cannaday, perceived Nicarry’s actions as
threatening and feared for either their safety or the safety of other officers.
Smith and Cannaday fired their gun three times each. Nicarry was shot in
the right side of his back and fell approximately eleven feet from the shed door.
Two other bullets grazed Nicarry’s head and leg. Nicarry was within only a few
feet of the officers when he fell.
3
Nicarry claims that he grabbed the screwdriver because he thought that, if he left it in
the shed, police would be able to identify him through fingerprints on it.
4
Several of the officers, including Cannaday and Smith, testified that when Nicarry
charged out of the shed, he was yelling or growling as if he was in “attack mode” and was
holding the screwdriver above his head. Nicarry testified that he did not remember yelling or
growling or having the screwdriver raised above his head as he ran. Nicarry did not remember
where he held the screwdriver as he exited the shed, but conceded that the screwdriver was in
plain sight. For purposes of our review, we assume Nicarry was not yelling and was holding the
screwdriver in plain sight.
5
In earlier statements, Cannaday identified the speaker as Smith. Smith, however,
testified that he did not announce that Nicarry had anything in his hand. When informed of
Smith’s testimony, Cannaday responded that he remembered hearing “drop the screwdriver.”
5
After the shooting, an investigator with the Florida Department of Law
Enforcement (“FDLE”) found three .40 caliber casings and three 9 millimeter
casings at the scene. Further, an FDLE investigator examined the shirt Nicarry
wore when he was shot and found “3 in-line holes in the middle of the back” that
were consistent with the entrance of a single projectile. The bullet lodged in
Nicarry’s hip was later determined to have been fired by Cannaday.
Nicarry filed a § 1983 complaint alleging, inter alia, that Cannaday used
excessive force when he shot Nicarry and that Sheriff Eslinger failed to properly
train Cannaday on the use of force. The district court granted summary judgment
on qualified immunity grounds. Specifically, the district court granted summary
judgment to Cannaday on the excessive force claim, concluding that Cannaday’s
use of force under the circumstances was objectively reasonable. The district court
further found that, because Cannaday did not violate Nicarry’s constitutional
rights, Nicarry’s failure-to-train claim against Eslinger necessarily failed as well.
Nicarry filed this appeal.6
II. DISCUSSION
6
The district court dismissed all claims against two co-defendants, Florida Highway
Patrol Trooper Lawrence Pierre Smith and the Florida Department of Highway Safety and Motor
Vehicles, and Nicarry does not appeal their dismissal. Likewise, the district court entered
summary judgment on Nicarry’s state tort claims of negligence and battery against all four
defendants, including Cannaday and Eslinger, and Nicarry does not challenge those rulings on
appeal.
6
On appeal, Nicarry asserts that a jury could have concluded from the facts
presented that Cannaday’s use of force was not objectively reasonable and thus,
Cannaday was not entitled to summary judgment on qualified immunity grounds.
In determining whether an individual defendant is entitled to qualified immunity,
we must first determine whether, taking the facts in the light most favorable to the
plaintiff, the defendant violated the plaintiff’s constitutional rights. Vinyard v.
Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002). If a constitutional violation is
shown, we then consider whether the constitutional right was clearly established.
Id.7
The Fourth Amendment right to be free from unreasonable seizures includes
the right to be “free from the use of excessive force in the course of an
investigatory stop or other ‘seizure’ of the person.” Beshers v. Harrison, 495 F.3d
1260, 1265 (11th Cir. 2007) (quotation marks omitted). “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.” Id. at
1266 (quotation marks omitted). The reasonableness of the force used is “judged
7
It is undisputed that Cannaday was acting within the scope of his discretionary authority
and used deadly force when he shot Nicarry and also that the shooting constituted a “seizure”
within the meaning of the Fourth Amendment.
7
from the perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight” and “‘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.’” Carr v. Tatangelo, 338 F.3d 1259, 1267-68 (11th Cir.
2003) (quoting in part Graham v. Connor, 490 U.S. 386, 396-97, 109 S. Ct. 1865,
1872 (1989)).
It is not constitutionally unreasonable for an officer to use deadly force
“[w]here the officer has probable cause to believe that the suspect poses a threat of
serious physical harm, either to the officer or to others,” or “if the suspect threatens
the officer with a weapon . . . and if, where feasible, some warning has been
given.” Tennessee v. Garner, 471 U.S. 1, 11-12, 105 S. Ct. 1694, 1701 (1985); see
also Long v. Slaton, ___ F.3d ___, No. 06-14439, 2007 WL 3407680, at *2 (11th
Cir. Nov. 16, 2007); Robinson v. Arrugueta, 415 F.3d 1252, 1255 (11th Cir. 2006).
The evidence, even viewed in the light most favorable to Nicarry, shows that
Cannaday’s use of force was objectively reasonable because Cannaday had
probable cause to believe that Nicarry posed a threat of serious physical harm to
Cannaday and his fellow officers on the scene. Nicarry led police on a night-time
motor vehicle pursuit and then a foot chase through a quiet residential
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neighborhood. During the chase, Nicarry refused to pull over and had fled from
officers, first in his van and then on foot. Cannaday and the other officers found
Nicarry hiding in a dark shed in the backyard of a residence. As the officers
arrived, they formed a rough semi-circle between ten and fifteen feet from the shed
door. Nicarry was commanded to come out of the shed, but did not do so. Within
seconds of being commanded a second time to come out of the shed, Nicarry, a
very large man, charged from the shed at full speed while holding a screwdriver
and ran in the general direction of at least some of the officers. Nicarry admitted
not only that he was running full speed, but that he leapt off a lawnmower as he
charged out. Although Cannaday had his gun drawn, he did not fire until he saw
the metal object in Nicarry’s hand and heard someone call out a warning about a
screwdriver.
We stress that, even under Nicarry’s version of events, the entire episode
after the second command lasted only a few seconds and only a few feet separated
Nicarry and the officers who were trying to apprehend him. Given the split-
second, rapidly escalating nature of the situation, we conclude that a reasonable
officer in Cannaday’s shoes could have perceived that Nicarry posed an immediate
threat of serious physical harm to himself and his fellow officers. Specifically, it
was reasonable, under the circumstances of Nicarry’s earlier flight in his van and
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on foot and his refusal to come out of the shed when first ordered to do so, to
believe that Nicarry intended to evade capture and flee and to use the screwdriver
as a weapon against any of the officers clustered around the shed that got in his
way.
Nicarry argues that, because it was dark in the backyard and the screwdriver
was rusty, it would have been difficult to see the object in his hand. While we
must draw all reasonable inferences in favor of Nicarry, the fact that it was dark
when Nicarry ran out of the shed does not create a genuine issue of material fact as
to whether Cannaday actually saw a metal object in Nicarry’s hand before firing
his gun. The undisputed record shows that Nicarry was illuminated by Smith’s
flashlight, that Nicarry held the screwdriver in plain sight and that Cannaday saw a
metal object in Nicarry’s hand.
Nicarry emphasizes that he was shot in the back, raising a reasonable
inference that Nicarry was not running directly at Cannaday when he fired the gun.
However, an officer’s reasonable use of deadly force is not limited to protecting
himself from serious physical harm. An officer may also reasonably use deadly
force if he has probable cause to believe that a suspect poses an imminent threat of
serious physical harm to his fellow officers. It is undisputed that other officers
10
were within a few feet of Nicarry as he charged out of the shed with a screwdriver.8
Because the facts as alleged by Nicarry failed to establish a Fourth
Amendment violation, the district court correctly concluded that Cannaday is
entitled to qualified immunity and properly granted Cannaday summary judgment.9
Furthermore, because Nicarry failed to show a constitutional deprivation, the
district court properly granted summary judgment to Eslinger on Nicarry’s failure-
to-train claim. See Hicks v. Moore, 422 F.3d 1246, 1253 (11th Cir. 2005)
(explaining that a supervisory liability claim for failure to train necessarily fails
when there is no Fourth Amendment violation).
AFFIRMED.
8
Because it is undisputed that Nicarry was only a few feet away from the officers when
he charged out of the shed at a full run, a reasonable jury could not find that it was feasible for
Cannaday to give a specific warning about the use of deadly force before firing his gun.
9
Because we conclude that Nicarry failed to show Cannaday’s use of force violated
Nicarry’s Fourth Amendment rights, we do not address the second prong of the qualified
immunity analysis–whether Cannaday’s use of force violated clearly established law.
11