Frank A. Howell, Sr. v. City of Lithonia

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 28, 2010
No. 09-11599 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-01046-CV-JOF-1
FRANK A. HOWELL, SR.,
Plaintiff-Appellant,
versus
CITY OF LITHONIA,
LITHONIA POLICE DEPARTMENT,
WILLIE J. ROSSER, Chief of Police,
COREY E. BLACKMON, Police Officer,
JOHN DOE, I,
JOHN DOE, II,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 28, 2010)
Before EDMONDSON, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Frank A. Howell, Sr., proceeding pro se, appeals the grant of summary
judgment in favor of defendants in Howell’s 42 U.S.C. § 1983 lawsuit. No
reversible error has been shown; we affirm.
In his complaint, Howell raised claims of false arrest and excessive force in
violation of the Fourth Amendment based on allegations stemming from an
incident that occurred in a Lithonia, Georgia, public park. According to Howell,
he entered the park in his car at about 7:30 a.m. While inside his parked car, he
had a cold, wet towel to his forehead as part of a morning ritual he performed
before reading his Bible in the park. About an hour later, Officer Corey Blackmon
observed Howell in his car and approached him in Blackmon’s police car.
Blackmon accused Howell of sleeping in the park overnight; Howell denied the
accusation. Blackmon asked Howell to leave the park, but Howell refused because
he thought he had a right to be there. When Howell would not leave the park,
Blackmon got out of his car, opened Howell’s car door, dragged him out of the car,
pushed him against the police car, pushed his face into the hood, and arrested him.
Blackmon did not explain to Howell why he was arrested, and only later did
Howell learn that it was for obstruction of an officer. The charge later was
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dismissed. Howell also named as defendants the City of Lithonia and Chief of
Police Willie Rosser.1
The district court determined that (1) Blackmon was entitled to qualified
immunity in his individual capacity because he had arguable probable cause to
arrest Howell and had not used excessive force in effectuating the arrest; (2)
Howell had asserted no basis for municipal liability against the City; and (3)
Rosser had not personally participated in the allegedly unconstitutional acts so
could not be liable.
On appeal, Howell challenges the district court’s arguable probable cause
determination. We review a district court’s grant of summary judgment de novo;
and we view the evidence and all reasonable factual inferences in the light most
favorable to the nonmoving party. Skop v. City of Atlanta, 485 F.3d 1130, 1136
(11th Cir. 2007).
To show entitlement to qualified immunity, “the defendant government
official must prove that he was acting within the scope of his discretionary
authority when the allegedly wrongful acts occurred.” Jordon v. Doe, 38 F.3d
1559, 1565 (11th Cir. 1994) (internal quotations omitted). Discretionary authority
1
Howell alleged that he earlier had spoken to Rosser about the police harassment Howell
experienced in the park. On the day of his arrest, Howell believed that he was under Rosser’s
protection and he sought to call Rosser via 911. But Blackmon, after speaking to someone on
his cell phone, arrested Howell before Howell could talk to Rosser.
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includes all acts of a governmental official that were (1) undertaken pursuant to the
performance of his duties and (2) within the scope of his authority. Id. at 1566.
Here, making an arrest clearly fell within the scope of Blackmon’s authority as a
police officer. The burden then shifts to the plaintiff to show that (1) the facts, as
alleged and viewed in the light most favorable to the plaintiff, establish a
constitutional violation and (2) given the circumstances, the constitutional right
violated clearly was established. Id. at 1565.
A warrantless arrest without probable cause violates the Fourth Amendment
and forms a basis for a section 1983 claim. Ortego v. Christian, 85 F.3d 1521,
1525 (11th Cir. 1996). But even if an officer did not have actual probable cause to
arrest a person, he can still be entitled to qualified immunity if he had arguable
probable cause: “that is, whether reasonable officers in the same circumstances and
possessing the same knowledge as the Defendant[] could have believed that
probable cause existed to arrest.” Skop, 485 F.3d at 1137 (citation and internal
quotation omitted) (emphasis in original). To determine whether arguable
probable cause exists, courts must look to the totality of the circumstances. Davis
v. Williams, 451 F.3d 759, 763 (11th Cir. 2006).
Here, the undisputed facts show that (1) Blackmon had observed Howell’s
parked car at the park on the evening before Howell’s arrest, (2) Blackmon
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observed the car parked in the same spot the next morning after the park had
opened; (3) Howell had a bowl of water and a towel or rag in the car that morning;
and (4) Blackmon testified that it looked like Howell was bathing himself. On
these facts, a reasonable officer in Blackmon’s position could have concluded that
Howell had spent the night in the park after it was closed; and this act would have
violated the local ordinance setting forth that the park is closed between dark and 7
a.m. That Blackmon did not arrest Howell for sleeping in the park but, instead, for
obstructing an officer does not change that Blackmon had arguable probable cause
to arrest him. See Devenpeck v. Alford, 125 S.Ct. 588, 594 (2004) (an officer’s
“subjective reason for making the arrest need not be the criminal offense as to
which the known facts provide probable cause”).
We also conclude that Blackmon did not lose qualified immunity by using
excessive force. “[T]he application of de minimis force, without more, will not
support” an excessive force claim. Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir.
2000). Blackmon’s acts in taking Howell out of his car and pushing him against
the police car to effectuate an arrest constituted de minimis force; and Howell
suffered only soreness as a result of the force used. Id. at 1258 (concluding that
only de minimis force was used when officer grabbed the plaintiff, shoved him a
few feet against a vehicle, pushed his knee into plaintiff’s back, pushed plaintiff’s
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head against the van, searched plaintiff’s groin area in an uncomfortable manner,
and placed plaintiff in handcuffs, all resulting in only minor bruising). The amount
of force used by Blackmon certainly was not so great that every reasonable officer
in Blackmon’s position would have concluded that the force was unlawful. See
Lee v. Ferraro, 284 F.3d 1188, 1198-99 (11th Cir. 2002) (discussing the standards
under which qualified immunity can be stripped in cases of excessive force).
We conclude that no constitutional violation occurred; and if one occurred,
Blackmon was entitled to qualified immunity in his individual capacity.2 Because
Blackmon committed no constitutional violation, Howell cannot show a basis on
which to establish municipal liability against the City or supervisory liability
2
The court correctly determined that Blackmon could not be sued in his official capacity
because, in his official capacity, he was not a person within the meaning of section 1983. See
Will v. Michigan Dep’t of State Police, 109 S.Ct. 2304, 2312 (1989).
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against Rosser.3
AFFIRMED.
3
Howell attempts to establish Rosser’s liability by claiming that Rosser
personally directed Blackmon to arrest Howell based on a telephone conversation
that occurred between Blackmon and Rosser immediately before the arrest. But
the evidence, even when taken in the light most favorable to Howell, does not lead
to a reasonable inference that Howell’s arrest was the result of a decision by
Rosser. Howell testified that he could not hear what Blackmon was saying on the
phone just before Howell’s arrest; and Blackmon testified that Rosser told him to
“do what [he] ha[d] to do” if, in fact, Howell had been sleeping in the park. Thus,
even if Blackmon lacked probable cause, Howell did not set forth the necessary
causal connection between the acts of a supervising official and the alleged
constitutional deprivation to establish supervisory liability under section 1983. See
Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003).
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