Fabiano B. Pinto v. Kevin J. Rambosk

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13064
Non-Argument Calendar
____________________
FABIANO B. PINTO,
Plaintiff-Appellant,
versus
COLLIER COUNTY, et al.,
Defendants,
KEVIN J. RAMBOSK,
MATTHEW A. KINNEY,
JOSHUA CAMPOLO,
ADAM J. DILLMAN,
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2 Opinion of the Court 21-13064
STEVE MAHOLTZ, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 2:19-cv-00551-JLB-MRM
____________________
Before BRANCH, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Fabiano Pinto appeals from the grant of summary judgment
to two Florida sheriff’s deputies—Matthew Kinney and Steve
Maholtz—on various 42 U.S.C. § 1983 and Florida state law
claims—false imprisonment, false arrest, malicious prosecution,
excessive force, and battery—stemming from an incident outside a
nightclub on Pinto’s thirtieth birthday and his subsequent arrest for
battery of a law enforcement officer. Because Kinney had probable
cause to arrest Pinto and used only reasonable force, all of Pinto’s
claims fail, and we affirm the district court.
I. Factual Background
Pinto and a group of twenty to twenty-five friends and
family members were out celebrating Pinto’s thirtieth birthday in
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Naples, Florida. At one point in the evening, they went to
Mercato—an outdoor shopping center with several restaurants,
bars, and clubs. At some point after midnight, the group sought to
enter the Cavo Lounge, one of the bars in Mercato. Seeing a line
and roped-off entrance, Pinto approached the manager, Jason
Buro, and asked whether Cavo had room for “about 20 people.”
Buro told Pinto that the bar was full and that the group could not
enter. But Pinto saw his sister and several members of his group
enter Cavo from a different entrance. Trying to get his sister’s
attention amid the loud atmosphere to let her know that the group
planned to walk down to a different bar, Pinto began waiving his
right hand in her direction, at which point Buro “smacked down”
Pinto’s hand. Pinto then told Buro, “What the fuck was that about?
What did you do that for?” and, according to Pinto, Buro told him
that he “was waiving too close to him and . . . was getting too close
to [Buro’s] face” and to “[g]et the ‘F’ out of here.” Pinto responded
by apologizing and explaining that he was trying to get his sister’s
attention.
That night, Deputy Kinney was on special-detail duty at
Mercato and was standing about 10 feet away from Pinto and Buro.
Several other sheriff’s deputies were also present on the scene.
Kinney observed the altercation between Buro and Pinto, and,
according to Pinto, approached and pushed Pinto on his shoulder
“or back area” as he was turning to leave the entrance to Cavo. As
a result of the push, Pinto stumbled “probably two feet, two and a
half” feet but did not fall. Pinto explained that, to maintain balance,
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he extended his right arm and his hand made contact with Kinney’s
chest. Pinto said he “knew [he] wasn’t touching regular clothes,”
and when Pinto turned around, he realized that Kinney was law
enforcement because he was wearing a uniform marked “sheriff.”
Kinney immediately grabbed Pinto’s left arm and placed it
behind his back, but Pinto kept his right hand in the air, allegedly
because he was confused as to why he was being arrested. Another
deputy grabbed Pinto’s right arm and handcuffed him. The officers
held Pinto’s arms and, according to Pinto, his “arm was just kind of
pushed up a little bit too far, further than [Pinto] could put [his]
shoulders.”
After he was handcuffed, Pinto was escorted by Kinney and
another deputy to a parking garage where a patrol car was waiting.
Following behind were several members of Pinto’s party.
The officers positioned Pinto standing against the side of the
patrol car, where he was searched. Cell phone footage shows the
individuals who were with Pinto yelling at police officers and
repeatedly approaching the police vehicle. At one point in the
video recording, Pinto—standing against the car—yells “I am not
resisting. I am not resisting at all,” and turns his head to Kinney
and asks, “What the fuck are you doing?” 1 The video then shows
Kinney using his hand to push and temporarily hold Pinto’s face
1
This comment is not audible in the video recording, but in his deposition,
Pinto confirmed that he said “What the fuck are you doing?” when he turned
his head toward Kinney.
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back. Several officers then placed Pinto in the vehicle, and he was
driven to the Naples jail and booked for, among other things,
battery on a law enforcement officer. He was released on bond the
next day, and the state attorney ultimately dismissed all charges.
II. Procedural Background
Pinto sued Kinney and Maholtz in their individual capacities,
along with several other county officials and law enforcement
officers, bringing federal constitutional claims under § 1983 as well
as Florida state law claims. In particular, as relevant to this appeal, 2
Pinto asserted numerous claims against Kinney, including false
arrest and false imprisonment under the Fourth Amendment,
excessive force under the Fourth Amendment, false arrest and
imprisonment under Florida law, and Florida battery. He also
asserted a malicious prosecution claim under Florida law against
both Kinney and Deputy Steve Maholtz.3
Kinney and Maholtz moved for summary judgment, Pinto
opposed the motion and cross-moved for summary judgment, and
the district court granted summary judgment to the defendants.
The district court found that, because Kinney had probable cause
to arrest Pinto, his false arrest and imprisonment claims—federal
2
Pinto asserted several other claims against a variety of defendants that he has
not raised on appeal that we therefore do not discuss.
3
Maholtz was on the scene during Pinto’s arrest and wrote a police report
attesting that he witnessed Pinto “push or stiff-arm” Kinney.
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and state—failed as a matter of law. 4 As to Pinto’s Florida battery
claim, the district court found that Kinney never used excessive
force against Pinto.5 It similarly rejected Pinto’s § 1983 excessive
force claim, concluding that Kinney used reasonable force.6
Finally, the district court rejected Pinto’s malicious
prosecution claim under Florida law against Kinney and Maholtz
because, among other reasons, there was probable cause for the
original charges against Pinto.
Accordingly, the district court entered summary judgment
for the defendants. Pinto timely appealed.
III. Standard of Review
We review de novo a district court’s grant of summary
judgment, viewing the evidence in the light most favorable to the
nonmovant. Burton v. Tampa Hous. Auth., 271 F.3d 1274, 1276–
77 (11th Cir. 2001). Although we must view the facts in favor of
4
Alternatively, the district court found that even absent actual probable cause,
Pinto’s claims of false imprisonment and arrest failed because Kinney had
arguable probable cause and was entitled to qualified immunity (on the § 1983
claims) and state sovereign immunity on the Florida law claims.
5
The district court alternatively held that, as to the Florida battery claim, Pinto
failed to show that Kinney acted in bad faith or with malicious purpose so the
officials were shielded by state sovereign immunity.
6
The district court also held that, even if Kinney did use excessive force, he
was still entitled to qualified immunity because he did not violate Pinto’s
clearly established rights.
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the nonmoving party, we accept video evidence over the
nonmoving party’s account when the former obviously contradicts
the latter. See Scott v. Harris, 550 U.S. 372, 380 (2007). “Summary
judgment is appropriate when there are no genuine issues of
material fact and the movant is entitled to judgment as a matter of
law.” Burton, 271 F.3d at 1277 (quotation omitted).
IV. Discussion
On appeal, Pinto challenges the district court’s grant of
summary judgment to the defendants on these claims: (1) false
arrest and false imprisonment under the Fourth Amendment
against Kinney; (2) excessive force under the Fourth Amendment
against Kinney; (3) false arrest and imprisonment under Florida law
against Kinney; (4) Florida battery against Kinney; and (5)
malicious prosecution under Florida law against Kinney and
Maholtz. As explained further below, because Kinney had
probable cause to arrest Pinto for battery of a law enforcement
officer and because he used reasonable force throughout his
interaction with Pinto, the district court did not err in granting
summary judgment on Pinto’s claims.
A. Officer Kinney Had Probable Cause to Arrest Pinto
1. False Arrest and False Imprisonment
Pinto claims that his arrest and detention at the hands of
Officer Kinney constituted false arrest and false imprisonment
under the Fourth Amendment and Florida law because Kinney
lacked probable cause to arrest him.
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The protection of qualified immunity “shields officials from
civil liability so long as their conduct ‘does not violate clearly
established statutory or constitutional rights of which a reasonable
person would have known.’” Mullenix v. Luna, 577 U.S. 7, 11
(2015) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). And
because the officers were acting within their discretionary
authority, “it falls to [Pinto] to show that qualified immunity
should not apply.” Crocker v. Beatty, 995 F.3d 1232, 1239–40 (11th
Cir. 2021) (quotation omitted). A plaintiff can show that qualified
immunity should not apply by establishing (1) that the defendant
violated a constitutional right and (2) that the right was “clearly
established” at the time of the alleged misconduct. Id. at 1240. It
is within our discretion to affirm based on either prong. Pearson,
555 U.S. at 236.
On Pinto’s § 1983 false arrest and imprisonment claims,
Kinney is entitled to qualified immunity because he did not violate
Pinto’s constitutional rights because he had probable cause to
arrest Pinto. Pinto’s state law false imprisonment and arrest claims
fail for the same reason.
It is well established that probable cause is an absolute bar
to false arrest and imprisonment claims under both § 1983 and
Florida law. Crocker, 995 F.3d at 1245; see also Rankin v. Evans,
133 F.3d 1425, 1435 (11th Cir. 1998) (“[P]robable cause constitutes
an absolute bar to both state and § 1983 claims alleging false
arrest . . . .”); Ortega v. Christian, 85 F.3d 1521, 1526 (11th Cir.
1996) (“Where a police officer lacks probable cause to make an
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arrest, the arrestee has a claim under section 1983 for false
imprisonment based on a detention pursuant to that arrest.”).
Moreover, “the standard for determining whether probable cause
exists is the same under Florida and federal law.” Rankin, 133 F.3d
at 1435.
A law enforcement officer has probable cause to arrest a
suspect when “a reasonable officer could conclude . . . that there
was a substantial chance of criminal activity.” District of Columbia
v. Wesby, 138 S. Ct. 577, 588 (2018); see also Washington v.
Howard, 25 F.4th 891, 902 (11th Cir. 2022). In determining
whether an officer had probable cause for an arrest, we look to the
events preceding the arrest “from the standpoint of an objectively
reasonable police officer.” Wesby, 138 S. Ct. at 586 (quotation
omitted). Probable cause requires only “a probability” or
“substantial chance of criminal activity, not an actual showing of
such activity.” Id. (quotation omitted). It “is not a high bar.” Id.(quotation omitted).
Under Florida law, a person commits a battery on a law
enforcement officer if he
(1) intentionally touched or struck the victim or
intentionally caused bodily harm to the victim; (2)
the victim was a law enforcement officer; (3) the
defendant knew that the victim was a law
enforcement officer; and (4) the law enforcement
officer was engaged in the lawful performance of his
or her duties when the battery was committed.
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State v. Granner, 661 So. 2d 89, 90 (Fla. 5th DCA 1995). Critical for
our purposes, the touching element of this offense can be satisfied
“by any physical contact, no matter how slight,” United States v.
Vail-Bailon, 868 F.3d 1293, 1298 (11th Cir. 2017) (quotation
omitted), including “only nominal contact” such as “tapping a law
enforcement officer on the shoulder without consent,” State v.
Hearns, 961 So. 2d 211, 219 (Fla. 2007).
Pinto’s hand made contact with Kinney’s chest. Kinney was
wearing a uniform with the word “sheriff” displayed on the front.
From the perspective of an objectively reasonable police officer,
Pinto’s conduct established probable cause to arrest him for the
offense of battery on a law enforcement officer.
Pinto disagrees, contending that viewing the facts in his
favor “show[s] that he, in no way, intentionally touched or struck
Kinney” and “that Pinto did not even know that Kinney was an
officer.” But the existence of probable cause turns on neither
Pinto’s actual intent nor his subjective impression of the nature of
his contact with Kinney. We instead analyze the events preceding
an arrest from the perspective of an “objectively reasonable police
officer.” See Wesby, 138 S. Ct. at 586. And given that even slight
contact satisfies the intentional touching element of battery on a
law enforcement officer under Florida law, an objectively
reasonable officer could view Pinto’s contact with Kinney as
creating a substantial chance of criminal activity.
It is also irrelevant that Pinto did not know that Kinney was
a law enforcement officer because, viewed from the perspective of
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an objectively reasonable officer, there was at least a “substantial
chance” that Pinto saw the word “sheriff” before he touched
Kinney’s vest. Kinney is therefore entitled to qualified immunity
on Pinto’s § 1983 false arrest claim because, given the existence of
probable cause, Kinney did not violate Pinto’s constitutional
rights. 7
7
Pinto argues in the alternative that the false arrest and imprisonment
occurred when Kinney pushed Pinto—before Pinto touched Kinney, which
was the act that gave Kinney probable cause to arrest him. But Pinto never
presented this theory or argument below. Because Pinto raised this issue for
the first time on appeal, we need not consider it. Access Now, Inc. v. Sw.
Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).
Moreover, even if Pinto’s argument were properly before us, we
would reject it because the push was not a seizure under the Fourth
Amendment. A person is seized under the Fourth Amendment when an
officer, “by means of physical force or show of authority, terminates or
restrains his freedom of movement through means intentionally applied.”
Brendlin v. California, 551 U.S. 249, 254 (2007) (quotations and internal
citation omitted). A Fourth Amendment seizure requires an objective
manifestation of “an intent to restrain.” Torres v. Madrid, 141 S.Ct. 989, 998
(2021). Critically, “force intentionally applied for some other purpose” is not
a seizure. Id.Kinney did not seize Pinto by pushing him. Although the force was
“intentionally applied,” it was not done to restrain Pinto or terminate his
movements but “for some other purpose”—i.e., to separate him from the
manager to prevent an escalation of the altercation between the two men. See
id.; see also Clark v. Edmunds, 513 F.3d 1219, 1222 (10th Cir. 2008) (holding
that a sheriff did not seize a woman by pushing her out of the way of his path
because “he did not intend to acquire physical control over her”). The push
was therefore not a seizure.
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And, as discussed above, the existence of probable cause is
also an absolute bar to false arrest and imprisonment claims under
Florida law, Crocker, 995 F.3d at 1245, and “the standard for
determining whether probable cause exists is the same under
Florida and federal law,” Rankin, 133 F.3d at 1435. Accordingly,
Pinto’s state law false arrest and imprisonment claims fail as well.
2. Malicious Prosecution
Pinto argues that his arrest constituted malicious
prosecution under Florida law because Kinney lacked probable
cause to arrest him for battery of a law enforcement officer and
Maholtz made false statements that Pinto pushed or stiff-armed
Kinney—when, according to Pinto, he only incidentally touched
Kinney as he was regaining his balance after being pushed. 8
Pinto’s Florida false arrest and imprisonment claims related to the
initial push fail similarly. Under Florida law, the elements of false
imprisonment are “(1) the unlawful detention and deprivation of liberty of a
person; (2) against that person’s will; (3) without legal authority or “color of
authority”; and (4) which is unreasonable and unwarranted under the
circumstances.” Montejo v. Martin Mem’l Med. Ctr., 935 So. 2d 1266, 1268–
69 (Fla. 4th DCA 2006). Pinto’s claim fails at step one because the push was
not a “detention” or a “deprivation of liberty.”
8
We note that, in the district court, Pinto also asserted a Fourth Amendment
malicious prosecution claim under § 1983, which the district court rejected.
Pinto does not challenge the district court’s grant of summary judgment on
the § 1983 malicious prosecution claim.
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To prevail on a malicious prosecution claim under Florida
law, a plaintiff must establish:
(1) an original criminal or civil judicial proceeding
against the present plaintiff was commenced or
continued; (2) the present defendant was the legal
cause of the original proceeding against the present
plaintiff as the defendant in the original proceeding;
(3) the termination of the original proceeding
constituted a bona fide termination of that
proceeding in favor of the present plaintiff; (4) there
was an absence of probable cause for the original
proceeding; (5) there was malice on the part of the
present defendant; and (6) the plaintiff suffered
damage as a result of the original proceeding.
Debrincat v. Fischer, 217 So. 3d 68, 70 (Fla. 2017) (quotation
omitted) (emphasis added).
Although it is true that an “arrest without further
prosecution” can serve as the basis for a malicious prosecution
action, Levine v. Hunt, 932 So. 2d 1292, 1293 (Fla. 2d DCA 2006),
Pinto’s claim nonetheless fails. Because, as discussed above,
Kinney had probable cause to arrest Pinto for battery of a law
enforcement officer, he cannot show an absence of probable cause
for the original proceeding. Accordingly, his malicious prosecution
claim fails.
B. Officer Kinney used reasonable force in arresting Pinto
Pinto also appeals the grant of summary judgment for the
defendants on his Florida battery and his § 1983 Fourth
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Amendment excessive force claims. Pinto argues that Kinney used
excessive force when he initially pushed Pinto, pushed Pinto’s arms
up at an awkward angle while handcuffed, and pushed Pinto’s face
toward the police car when Pinto was not resisting. Pinto also
argues that these acts constituted Florida battery.
1. § 1983 Excessive Force Claim
“[I]n addressing an excessive force claim brought under
§ 1983, analysis begins by identifying the specific constitutional
right allegedly infringed by the challenged application of force,” as
there is no “‘generic “right” to be free from excessive force.’”
Crocker, 995 F.3d at 1246 (quoting Graham v. Connor, 490 U.S.
386, 393–94 (1989)). Pinto alleges that Kinney violated his rights
under the Fourth Amendment to be protected against
“unreasonable . . . seizures.” See Graham, 490 U.S. at 394–95.
The key inquiry then is whether the officer’s use of force was
“objectively reasonable” under the circumstances. Id. at 388, 397.
We judge “[t]he ‘reasonableness’ of a particular use of force from
the perspective of a reasonable officer on the scene, rather than
with the 20/20 vision of hindsight.” Id. at 396. The proper
application of this test requires “careful attention to the facts and
circumstances,” including factors such as “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.” Id.USCA11 Case: 21-13064 Date Filed: 06/24/2022 Page: 15 of 19
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Critically, “[n]ot every push or shove, even if it may later
seem unnecessary in the peace of a judge’s chambers, violates the
Fourth Amendment.” Id. at 397 (quotation and internal citation
omitted). “The calculus of reasonableness must” recognize 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.” Id. We have long recognized that “the
application of de minimis force, without more, will not support a
claim for excessive force in violation of the Fourth Amendment.”
Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000). After all, “the
right to make an arrest necessarily carries with it the right to use
some degree of physical coercion or threat thereof, and the typical
arrest involves some force and injury.” Sebastian v. Ortiz, 918 F.3d
1301, 1308 (11th Cir. 2019) (quotation omitted).
Pinto has failed to show that Kinney violated his Fourth
Amendment rights. For starters, Pinto’s claim that Kinney used
excessive force when he pushed him to separate Pinto from Buro
fails. Fourth Amendment excessive force claims are rooted in the
right to be free from “unreasonable . . . seizures.” See Graham,
490 U.S. at 393–95; see also Crocker, 995 F.3d at 1246. And as
discussed in footnote 7, Kinney’s initial push was not a seizure
under the Fourth Amendment because it was not done with “an
intent to restrain,” but rather “for some other purpose”—namely
to separate two men engaged in an altercation outside of a crowded
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bar. See Torres, 141 S.Ct. at 998. Pinto’s claim as it relates to the
initial push fails accordingly.
Turning to the force used in arresting Pinto, including
Kinney putting his hand against Pinto’s face and pushing him
against the car, we conclude that such force was de minimis and
did not violate the Fourth Amendment. The cell phone video
recording shows that after Pinto yelled “I am not resisting”
repeatedly, he turned his head to the officers, got close to their
faces, and said “what the fuck are you doing,” at which point
Kinney used his hand to push and temporarily hold Pinto’s face
back in the direction of the patrol car. We have held in similar
situations that this type of force was de minimis or otherwise did
not violate the Fourth Amendment. See, e.g., Nolin, 207 F.3d at
1255 (holding that an officer grabbing the suspect and shoving him
a few feet against vehicle, pushing his knee into the suspect’s back
and the suspect’s head against van was de minimis force);
Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th Cir. 2002) (holding
that officer did not use excessive force when he “grabbed plaintiff’s
arm, twisted it around plaintiff’s back, jerking it up high to the
shoulder and then handcuffed plaintiff as plaintiff fell to his knees
screaming that [the officer] was hurting him,” noting that “[p]ainful
handcuffing, without more, is not excessive force in cases where
the resulting injuries are minimal”); Jones v. City of Dothan, 121
F.3d 1456, 1458, 1460–61 (11th Cir. 1997) (de minimis force when
police slammed the suspect against the wall, kicked his legs apart
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and required him to raise his arms above his head as officers carried
out arrest).
Pinto points to our decision in Lee v. Ferraro, 284 F.3d 1188(11th Cir. 2002), where we held an officer used excessive force in
arresting the plaintiff. Pinto claims Lee is “factually
indistinguishable” from his case. We are unpersuaded. In Lee, the
plaintiff was arrested after violating a local horn honking
ordinance. Lee, 284 F.3d at 1190–91. The officer pulled her out of
her car by the wrist and, after she was handcuffed and fully secure,
the officer took her to the back of her car, spread her legs with his
foot, and slammed her head onto the trunk. Id. at 1191. As a result
of the force used, the plaintiff suffered severe emotional trauma
and diagnoses of “bilateral wrist trauma” and nerve damage. Id. at
1192. In rejecting the officer’s argument that the force used was
“de minimis,” we specifically noted that the horn honking offense
was not severe and that the disproportionate force was used after
“the arrestee [was] completely secured, and all danger vitiated.” Id.at 1199–1200.
In contrast, Pinto was arrested for a more serious offense
(battery on a law enforcement officer), he suffered no serious
physical injuries, and, importantly, unlike in Lee, where the
excessive force took place in a parking lot with no record of any
bystanders, id. at 1190, here, as revealed by the cell phone video,
Kinney pushed Pinto’s face amid a large gathering of Pinto’s friends
who were yelling at and approaching the officers and the vehicle
where Pinto was being secured. Pinto himself turned his head
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toward Kinney to yell at him. So as explained above, the force
Kinney used was de minimis and distinct from the excessive force
at issue in Lee. Kinney therefore did not violate Pinto’s
constitutional rights and is entitled to qualified immunity.
2. Florida Battery
We come to a similar conclusion about Pinto’s state law
battery claim. “A battery claim for excessive force is analyzed by
focusing upon whether the amount of force used was reasonable
under the circumstances.” City of Miami v. Sanders, 672 So.2d 46,
47 (Fla. 3d DCA 1996). We apply a presumption of good faith to
law enforcement conduct, holding officers liable only where the
force used is “clearly excessive.” Id.; Davis v. Williams, 451 F.3d
759, 768 (11th Cir. 2006). Given that Kinney’s use of force was de
minimis and reasonable under the circumstances, it was not
“clearly excessive” for purposes of Pinto’s Florida battery claim,
and that claim fails accordingly.9
9
To be sure, Sanders focused on the use of force during an arrest, and part of
Pinto’s battery claim involves Kinney’s pre-arrest push to separate Pinto from
Buro. But we see no reason that the reasonableness inquiry should apply any
less to battery claims against law enforcement for pre-arrest force. It is well-
established in Florida law that “[t]he limit of the force to be used by the police
is set at the exercise of such force as reasonably appears necessary to carry out
the duties imposed upon the officer by the public.” City of Fort Pierce v.
Cooper, 190 So. 2d 12 (Fla. 4th DCA 1966). And one such duty of sheriffs’
deputies is to be “conservators of the peace in their counties.” Fla. Stat. § 30.15(1)(e). As explained above, Kinney pushed Pinto to separate him from Buro
after witnessing a verbal altercation and physical contact between the men
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* * *
For the reasons stated, the district court properly granted
summary judgment to Kinney and Maholtz.
AFFIRMED.
outside a crowded nightclub. This force was therefore “reasonable” and not
“clearly excessive.” Sanders, 672 So.2d at 47.