USCA11 Case: 21-14178 Date Filed: 10/27/2022 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14178
Non-Argument Calendar
____________________
AARON TARRIE ASHLEY, SR.,
Plaintiff-Appellant,
versus
KELLY BENNETT,
Defendant-Appellee,
ACE UNIT, et al.,
Defendants.
____________________
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2 Opinion of the Court 21-14178
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 3:20-cv-00144-TCB
____________________
Before NEWSOM, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Aaron Ashley, Sr., a pro se state prisoner, appeals the district
court’s order granting Officer Kelly Bennett’s motion for summary
judgment in Ashley’s
42 U.S.C. § 1983 civil rights action. On ap-
peal, Ashley argues that Officer Bennett used excessive force dur-
ing his arrest when picking him up and placing him in a patrol ve-
hicle, and that Officer Bennett was not entitled to qualified immun-
ity. Notably, at the district court level, Ashley did not object to the
magistrate judge’s report and recommendation (“R&R”), which
had recommended that the district court grant Officer Bennett’s
motion for summary judgment because there was no genuine issue
of material fact for trial. Having received no objections, the district
court adopted the magistrate judge’s R&R after a careful review.
Once a magistrate judge issues an R&R, the parties may
serve and file written objections to the proposed findings and rec-
ommendations within 14 days after being served with a copy of the
R&R.
28 U.S.C. § 636(b)(1). A party failing to object to a magistrate
judge’s findings or recommendations contained in a R&R in ac-
cordance with § 636(b)(1) waives the right to challenge on appeal
the district court's order based on unobjected-to factual and legal
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21-14178 Opinion of the Court 3
conclusions if the party was informed of the time period for object-
ing and the consequences on appeal for failing to object. 11th Cir.
R. 3-1. In the absence of a proper objection, however, we may re-
view on appeal for plain error if necessary in the interests of justice.
Id.
Because Ashley failed to object to the magistrate judge’s
R&R, he has waived his right to challenge any unobjected-to fac-
tual or legal basis underlying the district court’s grant of the motion
for summary judgment. Although we retain the discretion to re-
view the merits of Ashley’s appeal in the interest of justice, Ashley
makes no arguments on appeal that the interests of justice compel
this Court to exercise its discretion to review the merits of the dis-
trict court’s order.
Even if Ashley had not waived his right to challenge the dis-
trict court’s grant of summary judgment, we would affirm. View-
ing the facts in the light most favorable to Ashley, the district court
did not err in granting Officer Bennett’s motion for summary judg-
ment because he did not exercise excessive force over Ashley, and,
even if he had, qualified immunity shields him from liability.
This Court reviews de novo the district court’s grant of a
motion for summary judgment. Burton v. Tampa Hous. Auth.,
271 F.3d 1274, 1276-77 (11th Cir. 2001). It considers all reasonable
factual inferences in the light most favorable to the non-moving
party.
Id. at 1277. Summary judgment is appropriate when there
is no genuine issue of material fact, and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine
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4 Opinion of the Court 21-14178
factual dispute exists only where a reasonable factfinder could find
by a preponderance of the evidence that the non-moving party is
entitled to a verdict. Kernel Records Oy v. Mosley,
694 F.3d 1294,
1300 (11th Cir. 2012). When a movant shows that there is no gen-
uine dispute of material fact, the burden shifts to the non-moving
party to show that there are facts that raise a genuine issue for a
jury to decide.
Id. Although all reasonable inferences must be
drawn in favor of the non-moving party when evaluating a motion
for summary judgment, “inferences based upon speculation are not
reasonable.”
Id. at 1301 (quotation marks omitted). “Evidence that
is merely colorable, or is not significantly probative of a disputed
fact cannot satisfy a party’s burden.”
Id. (quotation marks omit-
ted). Additionally, this Court “give[s] great deference to a district
court’s interpretation of its local rules and review a district court’s
application of local rules for an abuse of discretion.” Mann v. Taser
Int’l, Inc.,
588 F.3d 1291, 1302 (11th Cir. 2009) (quotation marks
omitted). Northern District of Georgia Local Rule 56 states that
the district court considers each of the movant’s facts as admitted
unless the respondent “directly refutes the movant’s fact with con-
cise responses supported by specific citations to evidence.”
N.D. Ga. L.R. 56.1(B)(2)(a)(2)(i).
The Fourth Amendment guarantees the right of persons to
be free from unreasonable seizures, which encompasses the right
to be free from the use of excessive force during an arrest. U.S.
Const. amend. IV; Graham v. Connor,
490 U.S. 386, 394-95 (1989).
Whether the degree of force used was “reasonable” is determined
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21-14178 Opinion of the Court 5
through an objective inquiry judged from the perspective of the
officers at the scene, given the circumstances that they faced, in-
cluding “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,
490 U.S. at 396-97. Allowances must be
made for officers’ split-second judgments about the amount of
force necessary when the circumstances are “tense, uncertain, and
rapidly evolving.”
Id. Accordingly, while “[r]econsideration will
nearly always reveal that something different could have been
done if the officer knew the future before it occurred,” this Court
will not second-guess the officers on that basis. Carr v. Tatangelo,
338 F.3d 1259, 1270 (11th Cir. 2003) (quotation marks omitted).
Determining whether the force used was “reasonable” in a partic-
ular seizure “requires a careful balancing of the nature and quality
of the intrusion on the individual’s Fourth Amendment interests
against the countervailing governmental interests at stake.” Gra-
ham,
490 U.S. at 396 (quotation marks omitted).
Any arrest requires some level of force, and an officer may
use “a reasonable amount of force to subdue and secure” an indi-
vidual. Lee v. Ferraro,
284 F.3d 1188, 1198 (11th Cir. 2002); Brown
v. City of Huntsville, Ala.,
608 F.3d 724, 739-40 (11th Cir. 2010).
“[T]he application of de minimis force, without more, will not sup-
port a claim for excessive force in violation of the Fourth Amend-
ment.” Nolin v. Isbell,
207 F.3d 1253, 1257, 1258 n.4 (11th Cir.
2000) (concluding that only de minimis force was used when, in the
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6 Opinion of the Court 21-14178
process of a lawful arrest, an officer grabbed a suspect, threw him
against a car several feet away, kneed him in the back, and caused
minor bruises); see also Croom v. Balkwill,
645 F.3d 1240, 1252-53
(11th Cir. 2011) (ruling that an officer used de minimis force by
holding a suspect on the ground for ten minutes with a foot on her
back until the area was secured); Durruthy v. Pastor,
351 F.3d 1080,
1094 (11th Cir. 2003) (holding that an officer used de minimis force
in forcing a suspect to the ground to handcuff him, and that, even
if this force was unnecessary, it was not unlawful). “[S]ome use of
force by a police officer when making a custodial arrest is necessary
and altogether lawful, regardless of the severity of the alleged of-
fense.” Durruthy,
351 F.3d at 1094. The extent of an individual’s
injuries is also relevant to determining whether the force that was
used was excessive. Stephens v. DeGiovanni,
852 F.3d 1298, 1325
(11th Cir. 2017).
Qualified immunity protects a government actor acting
within his discretionary authority from civil damages unless he vi-
olated a statutory or constitutional right that was clearly estab-
lished at the time the alleged violation occurred. Gilmore v.
Hodges,
738 F.3d 266, 272 (11th Cir. 2013). After the defendant-
actor has proved that he was acting within his discretionary author-
ity, the plaintiff must show that (1) the actor violated a constitu-
tional right and (2) the right was clearly established at the time of
the incident.
Id. This Court may decide these issues out of order.
Id. at 273. The law may be clearly established if (1) there is a case
with materially similar facts decided by the Supreme Court, the
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21-14178 Opinion of the Court 7
Court of Appeals, or the highest court of the relevant state; (2) “a
broader, clearly established principle should control the novel facts
in this situation”; or (3) the officer’s conduct was so egregious so as
to obviously violate the Constitution, even without caselaw on
point. Sebastian v. Ortiz,
918 F.3d 1301, 1310 (11th Cir. 2019) (ci-
tation omitted).
First, the district court did not err in determining that there
was no genuine issue of material fact between the parties. While
Ashley detailed a somewhat different factual narrative than did Of-
ficer Bennett in Ashley’s unsworn statement of facts, his allegations
of force, which include being “roughly seized on either of [his] el-
bows,” “yanked up into the air from a seated position on the
ground,” and “dragged approximately 60 to 70 feet to the patrol
vehicle” are not necessarily inconsistent with Officer Bennett’s less-
specific rendition of the facts. In particular, Officer Bennett’s State-
ment of Undisputed Material Facts detailed that he assisted another
officer with picking Ashley up from a seated position on the ground
and placed him in the patrol car for transport, but it did not clarify
how strongly he touched Ashley, how aggressively he raised him
up, and how far or in what manner he moved Ashley to the patrol
vehicle. Therefore, the competing narratives, on their face, are not
necessarily inconsistent with each other, such that they would cre-
ate a genuine issue of material fact that would preclude summary
judgment. See Kernel Records Oy, 694 F.3d at 1300.
The district court was correct to disregard Ashley’s version
of events because he failed to present actual evidence to support
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8 Opinion of the Court 21-14178
his alleged version of events. Under Northern District of Georgia
Local Rule 56, the district court properly considered Officer Ben-
nett’s facts as admitted because Ashley failed to support his re-
sponses with citations to evidence. N.D. Ga. L.R.
56.1(B)(2)(a)(2)(i). Giving great deference to the district court’s in-
terpretation of its local rule, the district court did not abuse its dis-
cretion in applying Rule 56 and considering Officer Bennett’s State-
ment of Undisputed Material Facts as admitted. Id.; Mann,
588
F.3d at 1302. As such, the undisputed facts established that Officer
Bennett’s only interaction was to lift Ashley from a seated position
and place him in a patrol car, without using unnecessary force to
do so.
Turning to Ashley’s excessive-force claim and applying the
Graham factors, Ashley’s crimes, which included malice murder,
felony murder, aggravated assault, armed robbery, concealing the
death of another, tampering with evidence, and theft, were severe
enough to warrant any minimal force required by Officer Bennett
to place Ashley in the patrol vehicle after his arrest. Graham,
490
U.S. at 396-97. While Ashley no longer posed an immediate threat
to the safety of the officers or others, and while he was not actively
resisting or trying to evade arrest when Officer Bennett physically
contacted him, the undisputed facts established that Officer Ben-
nett’s contact was limited to assisting another officer in placing
Ashley in the patrol vehicle. Graham,
490 U.S. at 396-97. As stated
in Ferraro, any arrest, which involves subsequently placing the
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21-14178 Opinion of the Court 9
suspect into the patrol vehicle, requires some level of physical con-
tact and force to secure the individual. See Ferraro,
284 F.3d at
1198.
Officer Bennett’s use of force to place Ashley in the vehicle,
even viewed in the light most favorable to Ashley, as set out in his
unsworn statements in opposition to the summary-judgment mo-
tion, as “roughly seizing” his elbow, yanking him into the air, and
dragging him to the patrol vehicle, was only de minimis force. No-
lin,
207 F.3d at 1257. Such contact by Officer Bennett was even less
egregious or aggressive than the force applied in a similar arrest
situation in Nolin, where an officer forced the suspect against the
car, kneed him in the back, and caused minor bruising, or in
Croom, where the officer held the suspect on the ground for ten
minutes with a foot on his back until the area was secured. Nolin,
207 F.3d at 1257; Croom,
645 F.3d at 1252-53. This Court held that
the more forceful physical contacts in Nolin and Croom were still
lawful uses of de minimis force during an arrest. See Nolin,
207
F.3d at 1257; Croom,
645 F.3d at 1252-53. Finally, while Ashley
alleged that he suffered injuries to his shoulders and back, which
are relevant when reviewing an excessive-force claim, he did not
offer any medical records or documentation to support these alle-
gations. Stephens, 852 F.3d at 1325. Because Officer Bennett only
applied de minimis force and not excessive force to place Ashley
into the patrol vehicle, his conduct did not violate Ashley’s Fourth
Amendment rights. Durruthy,
351 F.3d at 1094.
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Next, the district court did not err in finding that Officer
Bennett was shielded by qualified immunity. Ashley does not dis-
pute that Officer Bennett was acting within his discretionary au-
thority in performing his role during Ashley’s arrest and transport,
so the remaining inquiry to determine if qualified immunity shields
Officer Bennett is first whether Ashley showed that Officer Bennett
violated a constitutional right, and second, whether this right was
clearly established at the time of the incident. Gilmore, 738 F.3d at
272. Even viewing the facts in the light most favorable to Ashley,
the excessive-force analysis above demonstrates that Officer Ben-
nett did not violate Ashley’s constitutional rights when picking him
up and placing him in the patrol vehicle because any force that Of-
ficer Bennett used was de minimis. See Nolin,
207 F.3d at 1257;
Croom,
645 F.3d at 1252-53. Turning to the second part of the
qualified-immunity inquiry, Ashley failed to cite authority with
materially similar facts, a broader and clearly established principle
that should apply in his situation, or facts that showed that Officer
Bennett’s conduct was so egregious as to violate the Constitution,
even in the absence of binding caselaw. See Sebastian, 918 F.3d at
1310. Because Officer Bennett acted within his discretionary au-
thority as a law enforcement officer to help lift Ashley into the pa-
trol vehicle, and because Ashley failed to show that Officer Bennett
violated a constitutional right, the district court correctly found
that qualified immunity shielded Officer Bennett from any liability.
Sebastian, 918 F.3d at 1310.
Accordingly, we affirm.
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21-14178 Opinion of the Court 11
AFFIRMED.
