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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13070
Non-Argument Calendar
____________________
KEVIN LAMAR BLAKE,
Plaintiff-Appellant,
versus
ORANGE COUNTY SHERIFF'S OFFICE,
Police Department, individual capacity,
et al.,
Defendants,
ANDREW E. BRYANT,
Deputy Sheriff, individual capacity,
JORDAN M. DZIENDZIEL,
Detective, individual capacity,
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2 Opinion of the Court 21-13070
BRIAN P. SAVELLI,
Detective, individual capacity,
JULIE DEJESUS,
Deputy First Class, individual capacity,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:19-cv-00494-GKS-EJK
____________________
Before JILL PRYOR, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Kevin Blake, proceeding pro se, appeals an order granting
summary judgment to four officers of the Orange County Sheriff’s
Office. The district court awarded the officers qualified immunity
from Blake’s excessive force claims because it held that the force
used in restraining and moving him after an interrogation was
objectively reasonable. Blake’s appeal, liberally construed, argues
that qualified immunity was inappropriate because the defendants
were not acting within their discretionary authority; that the force
they used was not objectively reasonable and violated his Fourth
Amendment rights; and that the law on that point was clearly
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21-13070 Opinion of the Court 3
established at the time of his incident. We disagree with Blake and
affirm the district court.
I.
We interpret pro se complaints liberally and construe factual
inferences in favor of the non-movant at the summary judgment
stage. See Brown v. Crawford,
906 F.2d 667, 670 (11th Cir. 1990).
Blake brought this § 1983 suit against five Orange County police
officers, but on appeal only three remain relevant: Detective
Dziendziel, Detective Savelli, and Deputy Sheriff Bryant. 1
Blake was detained as a suspect in the armed robbery of a
pizza delivery driver. After being transported to the station, he was
placed in an interview room, where Dziendziel and Bryant tried to
question him. Bryant read Blake his Miranda rights at the
beginning of the conversation before Dziendziel arrived, and
Dziendziel read the Miranda rights again several minutes later
when he entered.
The conversation over the next half hour was less than
pleasant. As Blake admits, he “may have slightly been intoxicated” 2
and he “urinated in the corner of the room, used excessive
1 Deputy Sheriff Braden was dismissed from the action before summary
judgment. In the summary judgment order, the district judge explained how
Blake conceded that another officer—Deputy DeJesus—did not use any force
against him. Blake does not contest that fact on appeal.
2 He said on video “I don’t remember shit from no days, man, I get fucked up
every day, hang out, chill, and drink, that’s what I do, I drink.” When asked
to define “fucked up,” he said, “I mean drunk.”
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4 Opinion of the Court 21-13070
profanity, acted rude and belligerent, and at one point during the
end of the interview refused to sit down.” Explaining that decision,
Blake says that he “stood from his chair taking a few steps toward
the door hoping this would cause the Detective [Dziendziel] to end
the interview. Instead of his decision forcing the interview to end
it caused the situation to escalate out of control.”
Throughout his time in the interview room, two cameras
filmed Blake, producing video evidence (with sound) that he calls
“indisputable.” It clearly shows what happened. Though
handcuffed throughout the interview, Blake began leaning into
officers’ faces while yelling, and swinging his elbows. After he
stood up, Bryant and Dziendziel pushed Blake into a corner,
leading Blake to say that “you gonna have to use your gun tonight.”
Bryant and Dziendziel then took Blake to the ground, causing
other officers—including Savelli—to enter the room. Savelli
dragged Blake out of the room by his feet as Blake tried to wrestle
free, causing him to flip onto his back.
There is no video once Blake exits the interview room, but
he can be heard laughing and yelling that he was “walking on his
elbows.” He recounts being “dragged from the interview room to
the elevator.” Blake explains that as he “reached the elevator he
was still yelling and being verbally abusive. During his verbal
escapade saliva may have flown from his mouth unintentionally
striking one of the detectives.” Beyond the initial takedown, Blake
complains of rug burns from being dragged; that Savelli used his
foot to pin Blake’s head to the ground after the spitting incident in
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21-13070 Opinion of the Court 5
the elevator; that he was dropped rather than lowered to the
ground outside the building while the officers waited for a car to
transport Blake to jail; and that Dziendziel “placed a foot to
Appellant’s chest shoving him back into a laying down position” at
that time. Blake does not contest that the officers ceased using
force once his legs had been secured with hobbles. According to
his § 1983 complaint, these actions constitute unconstitutionally
excessive force in violation of Blake’s Fourth Amendment right to
be free from unlawful seizures.
After the incident, Blake reported abrasions on both elbows,
both knees, and his face—the last of which needed a bandage. He
was charged with battery on a law enforcement officer. A
lieutenant with the Professional Standards Section of the Orange
County Sheriff’s Office produced an administrative review which,
in Blake’s words, “corroborates exactly what the Appellant stated
in his Amended Complaint.” The report concluded that the
officers had acted reasonably and violated no internal office orders
or Florida statutes. The district court granted the officers’
summary judgment motion, determining that the force used
against Blake was objectively reasonable, and thus the officers were
entitled to qualified immunity.
II.
We review a district court’s order granting summary
judgment de novo, drawing all inferences and reviewing the
evidence in the light most favorable to the non-moving party.
Moton v. Cowart,
631 F.3d 1337, 1341 (11th Cir. 2011).
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6 Opinion of the Court 21-13070
III.
Once a government official shows that he acted within the
scope of his discretionary authority, the plaintiff must try to
overcome the qualified immunity defense by showing that: (1) the
defendant violated a constitutional right, and (2) the violation of
the right was clearly established. Wood v. Moss,
572 U.S. 744, 757
(2014).
“Because interrogating suspects and witnesses is one of a law
enforcement officer’s basic duties,” the district court concluded
that the officers were acting within their discretionary authority.
We agree. The test is whether an officer was “performing a
legitimate job-related function” through “means that were within
his power.” Holloman ex rel. Holloman v. Harland,
370 F.3d 1252,
1265 (11th Cir. 2004).
Blake’s argument is that after he invoked his right to remain
silent, any further questions the officers asked him were outside
their discretionary authority because they violated his Fifth
Amendment right to remain silent. But while one “might
reasonably believe that violating someone’s constitutional rights is
never a legitimate job-related function or within the scope of a
government official’s authority,” a test framed that way would be
“no more than an untenable tautology.”
Id. at 1266 (quotation
omitted). Instead, we “look to the general nature of the
defendant’s action, temporarily putting aside the fact that it may
have been committed for an unconstitutional purpose.”
Id. And
even Blake concedes that in general, the officers were acting within
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their discretionary authority by interviewing him.3 See also Vinyard
v. Wilson,
311 F.3d 1340, 1346 (11th Cir. 2002) (transporting a
suspect to jail is “clear” discretionary authority for police officers).
Because Blake does not cite any authority for his arguments
that the officers stepped outside their discretionary authority, we
assess whether he has met his burden on both prongs of qualified
immunity. He has not.
“Not every push or shove” violates the Fourth Amendment.
Graham v. Connor,
490 U.S. 386, 396 (1989) (quotation omitted).
Police officers may use some degree of physical coercion or threat
thereof to subdue an arrestee.
Id. at 396; Rodriguez v. Farrell,
280
F.3d 1341, 1351 (11th Cir. 2002). Whether force was excessive or
appropriate is judged under an objectively reasonable standard
from the perspective of a reasonable officer on the scene without
the benefit of hindsight. Graham,
490 U.S. at 396–97. Factors we
must consider include “the severity of the crime at issue,” “whether
the suspect poses an immediate threat to the safety of the officers
or others,” whether he was “actively resisting arrest or attempting
to evade arrest by flight,” “the need for the application of force,”
the “extent of the injury inflicted,” and the “relationship between
the need and amount of force used.” Mobley v. Palm Beach Cnty.
3 Outside of excessive force in violation of his Fourth Amendment rights,
Blake’s other constitutional claims were dismissed before summary judgment.
He does not challenge that decision in his appellate briefing.
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Sheriff Dep’t,
783 F.3d 1347, 1353 (11th Cir. 2015) (quotations
omitted).
These factors all support the use of force displayed by the
officers here. Blake was being questioned concerning an armed
robbery on a night when he had been drinking. Though he denied
being “drunk” during the police interview, he admitted he “may
have slightly been intoxicated” and to drinking “every day.” In his
own words, Blake explained how he stood up to try to end the
interview—and video and audio show him resisting the officers’
attempts to subdue him after that. Both his words and body
language threatened the officers. And the abrasions that Blake
reported all flowed from the officers’ efforts to get and keep him
on the ground, where he could be more easily secured. Cf. Smith
v. Mattox,
127 F.3d 1416, 1417–18, 1420 (11th Cir. 1997) (denying an
officer qualified immunity at summary judgment when he used
excessive force by breaking an arrestee’s arm while he “docilely
submitted” to handcuffing on the ground).
Blake cannot point to any clearly established law to the
contrary. We have held that an officer who punched a
“handcuffed, non-resisting” suspect “for no apparent reason other
than malice” used unreasonably excessive force. Hadley v.
Gutierrez,
526 F.3d 1324, 1333–34 (11th Cir. 2008); see also Lee v.
Ferraro,
284 F.3d 1188, 1190–91, 1199 (11th Cir. 2002) (similar). But
while Blake was handcuffed, he can hardly be described as non-
resisting—nor were the officers’ efforts to secure and remove him
from the room equivalent to a punch. As we explained in Lee,
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slamming a handcuffed arrestee against a car was excessive force
when she was “completely secured, and after any danger to the
arresting officer as well as any risk of flight had passed.” Lee,
284
F.3d at 1199. Blake was only in this position once the officers had
secured his legs with a hobble on the curb—which is also when
they stopped using force. The more comparable case is Draper v.
Reynolds. Draper—after initially behaving “politely”—became
“hostile, belligerent, and uncooperative,” refusing to comply with
an officer’s request while he “gestured animatedly” and
“continuously paced” about, necessitating a taser shot before
handcuffing. Draper v. Reynolds,
369 F.3d 1270, 1272–73, 1278 (11th
Cir. 2004).
Recognizing the lack of on-point caselaw, Blake argues that
the conduct was so obviously at the core of what the Constitution
prohibits that its unlawfulness was readily apparent to all. See
Mercado v. City of Orlando,
407 F.3d 1152, 1160 (11th Cir. 2005). As
he points out, that rule is “narrow.” The plaintiff must show that
every reasonable officer would conclude that the excessive force
used was plainly unlawful—a tall order here, especially given the
post-incident administrative review. See Priester v. City of Riviera
Beach, Florida,
208 F.3d 919, 926 (11th Cir. 2000). Here, the force
was not “so far beyond the hazy border between excessive and
acceptable force that the official had to know he was violating the
Constitution even without caselaw on point.”
Id. at 926 (quotation
omitted and alteration adopted). We therefore AFFIRM.
