Opinion
CASE NO.: 1:20-CV-32 (LAG)
2022-08-24
Guadalupe PEQUENO, Jr., Plaintiff, v. SEMINOLE COUNTY GEORGIA, et al., Defendant.
Chevene Bowers King, Jr., Albany, GA, for Plaintiff. Terry E. Williams, Buford, GA, for Defendant.
Chevene Bowers King, Jr., Albany, GA, for Plaintiff. Terry E. Williams, Buford, GA, for Defendant. ORDER LESLIE A. GARDNER, JUDGE
Before the Court is Defendants' Motion for Summary Judgment (Doc. 28). For the reasons stated below, Defendants' Motion is GRANTED in part and DENIED in part.
FACTUAL BACKGROUND
This case arises from the arrest of Plaintiff Guadalupe Pequeno, Jr., in response to a 911 domestic violence call. (Doc. 28-2 ¶ 1; Doc. 28-1 at 4). On February 16, 2018, Defendant Randall Carr, a Seminole County Sheriff's Office Deputy, was dispatched in response to a 911 domestic violence call from Plaintiff's girlfriend, Ms. Lorna Godby. (Doc. 28-2 ¶ 1; Doc. 28-1 at 4). Godby informed the 911 dispatcher that Plaintiff "had been drinking alcoholic beverages and was acting crazy, hiding in the bushes outside of the residence" and that Plaintiff "had pulled her hair." (Doc. 28-2 ¶ 1; Doc. 28-1 at 4). Godby also informed the dispatcher that Plaintiff had gotten into a "white van and left the residence." (Doc. 28-2 ¶ 2; Doc. 28-1 at 4).
The relevant facts are derived from Defendants' Statement of Undisputed Material Facts (Doc. 28-2), Plaintiff's Response to Each of the Defendants' Statement of Material Facts (Doc. 38-1), Plaintiff's Concise Statement of Material Facts to Which He Contends There Exists a Genuine Issue to be Tried (Doc. 38-2), and the record in this case. The Court construes the facts in the light most favorable to the nonmoving party. See Fed. R. Civ. P. 56(c); Jacoby v. Baldwin County, 835 F.3d 1338, 1342-43 (11th Cir. 2016) (citations omitted). Defendants filed digital evidence with the Clerk of Court that does not formally appear on the docket. (See Doc. 29). This evidence includes footage from Defendant Henry's dash camera and Defendant Carr's body camera. Citations to this footage are referenced as (Dash Cam.) and (Body Cam.), with the relevant time stamps.
Defendant Justin Henry, another Seminole County Sheriff's Office Deputy, also responded to the 911 call. (Doc. 28-2 ¶ 3; Doc. 28-1 at 4). While en route, Defendant Henry saw the white van driven by Plaintiff pass him in the opposite direction and notified Defendant Carr over the radio. (Doc. 28-2 ¶ 3; Doc. 28-1 at 4). Defendant Carr pulled off the road and waited for Plaintiff. (Doc. 28-2 ¶ 4; Doc. 28-1 at 4). When Plaintiff arrived, Defendant Carr activated his emergency lights and got behind Plaintiff's van, but Plaintiff did not immediately pull over. (Doc. 28-2 ¶¶ 4-5; Doc. 28-1 at 4; Dash Cam. at 00:21-00:39). Defendant Carr turned on his siren and Plaintiff stopped. (Doc. 28-2 ¶ 5; Doc. 28-1 at 4; Doc. 31 at 50:17-22; Dash Cam. at 00:39-00:41). Defendant Carr then stopped his patrol car, stepped out with his taser drawn, and yelled at Plaintiff to stay in the van, but Plaintiff did not comply. (Doc. 28-2 ¶ 5; Doc. 28-1 at 4; Dash Cam. at 00:49-00:59; Body Cam. at 00:00-00:03). While exiting the van, Plaintiff was talking to the officers, but it is not clear—from either recording—what Plaintiff said. (Doc. 28-2 ¶¶ 5-6; Body Cam. At 00:00-00:03; Dash Cam. at 00:55-00:59). Defendant Carr approached Plaintiff with his taser pointed at Plaintiff's chest and shouted: "You want to get shot? Get your ass on the ground! Get on the damn ground!" (Doc. 28-2 ¶ 7; Body Cam. at 00:00-00:03). As Plaintiff began slowly turning his back toward Defendants Carr and Henry, Defendants Carr and Henry grabbed Plaintiff, Defendant Carr told Plaintiff to "get [his] f***ing ass on the ground," and Defendants Carr and Henry then forced Plaintiff to the ground. (Doc. 28-2 ¶ 8; Body Cam. at 00:04-00:08; Dash Cam. at 00:59-01:04). Approximately five seconds lapsed from the beginning of the encounter to the point that Defendants Carr and Henry forced Plaintiff to the ground. (Body Cam. at 00:00-00:05).
Defendant Carr held Plaintiff down on the ground, and Defendant Henry pressed his taser to Plaintiff's back. (Body Cam. at 00:12-00:13; Dash Cam. at 01:05-01:07). Defendants Carr and Henry commanded Plaintiff to put his hands behind his back so they could handcuff him. (Doc. 28-2 ¶ 9; Body Cam. at 00:10-00:13; Dash Cam. at 01:07-01:10). Defendant Carr gave the order twice, in rapid succession—in the span of less than three seconds. (Body Cam. at 00:10-00:13). Immediately after giving the two rapid-fire commands, Defendant Henry yelled: "You're fixin' to be tased!" (Body Cam. at 00:13-00:14). Defendant Carr stood, shouted "taser," and deployed his taser for five seconds into Plaintiff's "upper middle back area." (Body Cam. at 00:16-00:21; Doc. 28-2 ¶ 10; Doc. 28-1 at 4). Approximately five seconds elapsed from the time Defendant Carr first ordered Plaintiff to put his hands behind his back and the time he tasered Plaintiff. (Body Cam. at 00:10-00:15). After being tased, Plaintiff put his hands behind his back and was handcuffed. (Doc. 28-2 ¶ 11; Doc. 28-1 at 4; Body Cam. at 00:22-00:27).
After Plaintiff was handcuffed, Defendant Carr told Plaintiff: "That's what you get for showing your ass." (Body Cam. at 00:55-00:56). Plaintiff then began talking about the incident that led to the 911 call. (Doc. 28-2 ¶ 12; Body Cam. at 00:56-1:18). Plaintiff also asked Defendants Carr and Henry to take him to jail and to put his girlfriend in jail. (Doc. 28-2 ¶¶ 14-15; Body Cam. at 01:18-01:45). Plaintiff continued to talk with Defendants Carr and Henry. (Doc. 28-2 ¶ 16; Body Cam. at 01:50-02:38). About two minutes and thirty-five seconds into the encounter, Plaintiff told Defendants, "y'all got me." (Doc. 28-2 ¶ 16; Body Cam. at 02:35-02:38). Defendant Henry removed the taser prongs from Plaintiff's back, assisted Plaintiff to his feet, and led Plaintiff to the front of a patrol car. (Doc. 28-2 ¶ 17; Body Cam. at 02:33-03:04).
Defendant Carr informed Plaintiff that Plaintiff's girlfriend had reported that Plaintiff had pulled her hair and was fighting with her. (Doc. 28-2 ¶ 18; Body Cam. at 03:58-04:02). Plaintiff, who clearly was inebriated, stated: "That's what she said. That's what the f***k she said." (Doc. 28-2 ¶ 18; Body Cam. at 04:02-04:04). Plaintiff stated that he had "been drinking a lot," but he declined to take a breathalyzer. (Doc. 28-2 ¶ 20; Body Cam. at 05:13-05:25; Doc. 28-1 at 4). Plaintiff told Defendant Carr that this was the first time that he had been tased and again stated that Defendant Carr had "gotten him good." (Doc. 28-2 ¶ 21; Body Cam. at 05:50-05:57). Defendant Carr asked Plaintiff if the taser had worked, and Plaintiff, laughing, said: "Hell yeah. You got me." (Doc. 28-2 ¶ 22; Body Cam. at 05:57-06:08). Defendant Carr also asked if the taser was still bothering Plaintiff, and Plaintiff responded: "F**ck no man." (Doc. 28-2 ¶ 22; Body Cam. at 06:16-06:20). Plaintiff went on to say, "it's bothers me [unintelligible], that b***h is getting the best me right now." (Body Cam. at 06:20-06:25). Plaintiff continued to talk to Defendants, but at no point did Plaintiff complain of discomfort. (Body Cam. at 06:25-17:23; Dash Cam. at 11:07-46:06).
Defendant Henry put Plaintiff in the patrol vehicle and transported Plaintiff to the Seminole County Jail. (Doc. 28-2 ¶¶ 25-26; Doc. 28-1 at 4). Plaintiff was charged with driving under the influence of alcohol in violation of O.C.G.A. § 40-6-391(a), obstruction of a law enforcement officer in violation of O.C.G.A. § 16-10-24(a), and "driving while license suspended/revoked" in violation of O.C.G.A. § 40-5-121. (Doc. 28-2 ¶ 27; Doc. 28-1 at 1). At the time of his deposition, those criminal charges were still pending. (Doc. 28-2 ¶ 28; Doc. 38-2 ¶ 6; Doc. 31 at 63:16-20).
Plaintiff asserts that while he was in jail, he felt some pain in his upper back area but was unsure if the pain was caused by "the tasing or the way [Defendants Carr and Henry] put [Plaintiff] on the ground." (Doc. 28-2 ¶ 32; Doc. 31 at 58:19). When Plaintiff complained to jail staff about his back pain, he was given "two Tylenols a day." (Doc. 28-3 ¶ 33; Doc. 31 at 64:1-14). Plaintiff stated that prior to the incident, he never had upper back pain. (Doc. 31 at 64:6-10).
PROCEDURAL BACKGROUND
Plaintiff filed this action on February 18, 2020. (Doc. 1). On February 24, 2020, Plaintiff filed a "Corrected Complaint." (Doc. 3). Plaintiff's Corrected Complaint includes two federal-law claims under 42 U.S.C. § 1983, alleging (1) that "[t]he actions of Defendants Carr and Henry violated Plaintiff's rights under the Fourth and Fourteenth Amendments . . . to be free from unlawful arrest, and the unlawful use of force," and (2) that Defendants Seminole County and Sheriff Heath Elliot violated Plaintiff's "constitutional rights under the Fourth and Fourteenth Amendments" because they "encouraged, tolerated, ratified, and [were] deliberately indifferent to the [multiple] policies, patterns, practices, and customs" and that there is a "need for more or different training, supervision, investigation, or discipline." (Id. ¶¶ 25-26). Plaintiff's Corrected Complaint also includes state-law claims against Defendants Carr and Henry for "assault, battery, false arrest, false imprisonment, and malicious prosecution." (Id. ¶ 27). Defendants Carr, Henry, and Elliot have been sued in their official and individual capacities. (Id. at 1). After multiple discovery extensions, Defendants filed the instant Motion for Summary Judgment on December 8, 2021. (Doc. 28). After two extensions, Plaintiff timely filed his Response. (Doc. 38). Defendants did not reply. (See Docket). The Motion is now ripe for review. See M.D. Ga. L.R. 7.3.
Plaintiff's Corrected Complaint lists Count III under paragraph twenty-six, but it appears that Count III should have been numbered paragraph twenty-seven. (See Doc. 3 at 5-6).
LEGAL STANDARD
Under Federal Rule of Civil Procedure 56, "[s]ummary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Maddox v. Stephens, 727 F.3d 1109, 1118 (11th Cir. 2013) (citations omitted); see also Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121, 1134 (11th Cir. 2020) (en banc). "A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor." Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (citation omitted).
"An issue of fact is 'material' if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case." Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (first citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); and then citing Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992)). "An issue of fact is 'genuine' if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party." Felts v. Wells Fargo Bank, N.A., 893 F.3d 1305, 1311 (11th Cir. 2018) (quoting Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259-60 (11th Cir. 2004)). At summary judgment, the Court views the evidence "in the light most favorable to the non-moving party" and resolves factual disputes for the nonmoving party when doing so is supported by sufficient evidence. Gogel, 967 F.3d at 1134 (quoting Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007)); Whitehead v. BBVA Compass Bank, 979 F.3d 1327, 1328 (11th Cir. 2020).
The movant bears the initial burden of showing, by reference to the record, that there is no genuine issue of material fact. Whitehead, 979 F.3d at 1328 (citation omitted); see Shaw v. City of Selma, 884 F.3d 1093, 1098 (11th Cir. 2018). The movant can meet this burden by presenting evidence showing that there is no genuine dispute of material fact or by demonstrating that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); McGee v. Sentinel Offender Servs., LLC, 719 F.3d 1236, 1242 (11th Cir. 2013) (per curiam). If the movant meets their initial burden, the nonmoving party must demonstrate that there is a genuine dispute for trial. Gogel, 967 F.3d at 1134 (citing Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548). The nonmovant must "go beyond the pleadings and . . . present competent evidence in the form of affidavits, answers to interrogatories, depositions, admissions and the like, designating specific facts showing a genuine issue for trial." Lamar v. Wells Fargo Bank, 597 F. App'x 555, 557 (11th Cir. 2014) (per curiam) (first citing Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); and then citing Celotex Corp., 477 U.S. at 324, 106 S.Ct. 2548).
"All material facts contained in the movant's statement which are not specifically controverted by specific citation to particular parts of materials in the record shall be deemed to have been admitted, unless otherwise inappropriate." M.D. Ga. L.R. 56; see also Mason v. George, 24 F. Supp. 3d 1254, 1260 (M.D. Ga. 2014). Local Rule 56 further requires that "documents and other record materials relied upon by a party moving for or opposing a motion for summary judgment . . . be clearly identified for the court." M.D. Ga. L.R. 56. The Court will not consider "[m]aterial facts not supported by specific citation to particular parts of materials in the record and statements in the form of issues or legal conclusions (rather than material facts)." Id.
DISCUSSION
Defendants argue they are entitled to summary judgment on all of Plaintiff's claims. Because Plaintiff's state-law claims depend on the Court's supplemental jurisdiction, the Court first addresses Plaintiff's federal-law claims. I. Federal Law Claims under 42 U.S.C. § 1983
Defendants argue that Plaintiff's federal claims should be dismissed because Plaintiff's official capacity claims are barred by the Eleventh Amendment and Defendants are entitled to qualified immunity as to Plaintiff's individual capacity claims. (Doc. 28-3 at 2-19). Plaintiff argues only that Defendants Carr and Henry are not entitled to qualified immunity on Plaintiff's excessive force claim against them in their individual capacities. (Doc. 38 at 2-6).
A. Abandoned Claims
Plaintiff failed to respond to Defendants' arguments regarding Plaintiff's (1) official capacity claims, (2) claims against Defendant Seminole County, and (3) supervisory liability claims against Defendant Elliot in his individual capacity. Thus, these claims have been abandoned. See LaFleur v. Hugine, 587 F. App'x 536, 540 (11th Cir. 2014) (per curiam) ("[F]ailure to brief and argue th[ese] issue[s] during the proceedings before the district court is grounds for finding that the[se] issue[s] ha[ve] been abandoned." (first alteration in original) (quoting Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11th Cir. 2000))); see also Clark v. City of Atlanta, 544 F. App'x 848, 855 (11th Cir. 2013) (per curiam) (holding that the district court "properly treated as abandoned the [plaintiffs'] excessive force and state law claims, which were alleged in the complaint, but not addressed in opposition to the motion for summary judgment").
Even if the Court were to consider these claims, they would fail. In Georgia, "sheriffs and their deputies serve as 'arms of the state' "—and are thus entitled to Eleventh Amendment immunity—when performing "general law enforcement functions" such as detaining and arresting suspects pursuant to state law. Merritt v. Thomas, No. 1:21-CV-20 (LAG), 2021 WL 5474461, at *4 (M.D. Ga. Sept. 23, 2021) (first quoting Townsend v. Coffee County, 854 F. Supp. 2d 1345, 1352 (S.D. Ga. 2011); and then quoting Frederick v. Brown, No. CV 113-176, 2015 WL 4756765, at *14 (S.D. Ga. Aug. 10, 2015) (other citations omitted)); Grech v. Clayton County, 335 F.3d 1326, 1347 (11th Cir. 2003) (en banc); Hudson v. Morris, No. 4:20-cv-120, 2021 WL 2188571, at *6 (S.D. Ga. May 28, 2021) (collecting cases and noting that "[c]ourts in the Eleventh Circuit have consistently held that a Georgia sheriff and his deputies are arms of the state when" they exercise law enforcement functions, including "arresting a suspect, a sheriff's use of force policy, and a sheriff's supervision, discipline, and retainment of one of his deputies"). Accordingly, the Eleventh Amendment bars Plaintiff's official capacity claims for damages against Defendants Elliott, Carr, and Henry. See Merritt, 2021 WL 5474461, at *4 (citing Henry v. Fla. Bar, 701 F. App'x 878, 881 (11th Cir. 2017) (per curiam)) (other citation omitted); see also Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991).
Plaintiff's claim against Defendant Seminole County would also fail. "A sheriff's policy or practice cannot be said to speak for the county because the county has no say about that policy or practice . . . . [A] county is liable under § 1983 only for acts for which the county is actually responsible." Grech, 335 F.3d at 1347 (emphasis added) (citing Marsh v. Butler County, 268 F.3d 1014, 1027 (11th Cir. 2001) (en banc)). Georgia counties have "no authority [or] control over the sheriff's law enforcement function[s]" and do "not, and cannot, direct the Sheriff how to arrest a criminal, how to hire, train, supervise, or discipline his deputies, what policies to adopt, or how to operate his office." Id. Thus, Defendant Seminole County had no control over Defendant Elliot or his deputies and is not liable for any of their alleged constitutional violations.
Last, Plaintiff's supervisory liability claim against Defendant Elliot would fail because Plaintiff has not pointed to any evidence demonstrating a "history of widespread abuse," much less anything that would have sufficiently put Defendant Elliot on notice of a need to train or supervise his deputies. See Knight ex rel. Kerr v. Miami-Dade County, 856 F.3d 795, 820 (11th Cir. 2017) (quoting Brown v. Crawford, 906 F.2d 667, 671 (11th Cir. 1990)). "[T]he only 'evidence' suggesting a pattern of [allegedly unconstitutional] conduct is this case itself." See id. at 820. This is not sufficient. Id. (affirming the district court's grant of summary judgment on a supervisory liability claim when the only evidence of tortious conduct the plaintiff submitted was his case). Accordingly, Defendants are entitled to summary judgment on these claims.
B. Qualified Immunity
To the extent that Plaintiff seeks to hold Defendants Carr and Henry liable in their individual capacities, Defendants contend that they are protected by qualified immunity. (See Doc. 3 at 1; Doc. 28-3 at 2-17). Plaintiff argues that Defendants Carr and Henry are not protected by qualified immunity because their use of force was not objectively reasonable and because they violated clearly established federal law. (Doc. 38 at 2-6).
"Qualified immunity protects government employees from suit in their individual capacities for discretionary actions in which they engage in the course of their duties." Alcocer v. Mills, 906 F.3d 944, 950-51 (11th Cir. 2018) (citations omitted). "Under qualified immunity, 'all but the plainly incompetent or one who is knowingly violating the federal law' are shielded from litigation." Id. at 951 (quoting Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)); Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). But qualified immunity does not protect an official who "knew or reasonably should have known that the action he took within his sphere of official responsibility would violate" the plaintiff's constitutional rights. Alcocer, 906 F.3d at 951 (citation omitted).
An official asserting "qualified immunity must first establish that she or he was acting within the scope of his discretionary authority." Id. "To act within the scope of discretionary authority means that 'the actions were (1) undertaken pursuant to the performance of [the official's] duties and (2) within the scope of [his] authority.' " Collier v. Dickinson, 477 F.3d 1306, 1307 n.1 (11th Cir. 2007) (alterations in original) (quoting Lenz v. Winburn, 51 F.3d 1540, 1545 (11th Cir. 1995)). "In other words, '[the court] ask[s] whether the government employee was (a) performing a legitimate job-related function (that is, pursuing a job-related goal), (b) through means that were within his power to utilize.' " Est. of Cummings v. Davenport, 906 F.3d 934, 940 (11th Cir. 2018) (quoting Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004)). When applying each part of this test, courts "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, in an unconstitutional manner, to an unconstitutional extent, or under constitutionally inappropriate circumstances." Id. (quoting Mikko v. City of Atlanta, 857 F.3d 1136, 1144 (11th Cir. 2017)). Courts review state law when determining the scope of a state official's discretionary authority. Id. "A bald assertion that the acts were taken pursuant to the performance of duties and within the scope of duties will not suffice." Harbert Int'l, Inc. v. James, 157 F.3d 1271, 1282 (11th Cir. 1998) (citation omitted). Here, it is undisputed that Defendants were acting within their discretionary authority during Plaintiff's arrest. See Crosby v. Monroe County, 394 F.3d 1328, 1332 (11th Cir. 2004) (explaining that "making an arrest is within the official responsibilities of a sheriff's deputy"); Cook ex rel. Tessier v. Sheriff of Monroe Cnty., 402 F.3d 1092, 1118 (11th Cir. 2005) (holding that a sheriff's decisions regarding the training and supervision of their officers are discretionary functions); see also Burnett v. Unified Gov't of Athens-Clarke Cnty., No. 3:08-CV-04 (CDL), 2009 WL 5175296, at *9 (M.D. Ga. Dec. 22, 2009)) (finding that under Georgia law, a "sheriff's supervision of officers and establishment of policies and procedures [are] discretionary" (citing Harvey v. Nichols, 260 Ga.App. 187, 581 S.E.2d 272, 276 (2003)) (other citation omitted)), aff'd, 395 F. App'x 567 (11th Cir. 2010) (per curiam).
"Once discretionary authority is established, the burden then shifts to the plaintiff to show that qualified immunity should not apply." Lewis v. City of W. Palm Beach, 561 F.3d 1288, 1291 (11th Cir. 2009) (citation omitted). To meet this burden, a plaintiff must establish that (1) "the officer's conduct amounted to a constitutional violation" and (2) "the right violated was 'clearly established' at the time of the violation." Id. (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). A court's two-step inquiry "is fluid" and may be done in whatever order is deemed most appropriate for the case. Id. (citing Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). "Traditionally, [however,] a court first determines whether the officer's conduct amounted to a constitutional violation." Id. (citing Saucier, 533 U.S. at 201, 121 S.Ct. 2151).
1. Claims Against Defendants Carr and Henry
Plaintiff alleges false arrest and excessive force claims under § 1983 against Defendants Carr and Henry. (Doc. 3 ¶ 25).
In Georgia, Section § 1983 claims are subject to the two-year statute of limitations "set forth in O.C.G.A. § 9-3-33." Bridgewater v. DeKalb Cnty. ex rel. Jones, 430 F. App'x 837, 838 (11th Cir. 2011) (per curiam) (citations omitted). Plaintiff's excessive force claim accrued the day the alleged excessive force was used on February 16, 2018. See Baker v. City of Hollywood, 391 F. App'x 819, 821 (11th Cir. 2010) (per curiam). Plaintiff filed this action on February 18, 2020, two days after the limitations period expired. (Doc. 1). Despite including it as an affirmative defense in their Answer, Defendants' Motion does not argue that this claim is barred by the statute of limitations. (See Doc. 7 at 9; see generally Doc. 28-3). "The Federal Rules of Civil Procedure provide that, '[i]n responding to a pleading, a party must affirmatively state any avoidance or affirmative defense,' including statute of limitations." Rogers v. United States, 569 F. App'x 819, 820 (11th Cir. 2014) (per curiam) (alteration in original) (quoting Fed. R. Civ. P. 8(c)). "The statute of limitations is an affirmative defense that [a defendant] waives if it fails to raise it in its [motion]." Id. (citing Jackson v. Sec'y for Dep't of Corr., 292 F.3d 1347, 1349 (11th Cir. 2002) (per curiam)). The Eleventh Circuit has "held that the district court may, at its discretion, sua sponte address the statute of limitations issue" but must first "accord the parties fair notice and an opportunity to present their positions." Id. at 820-21 (citing Jackson, 292 F.3d at 1349). Given the advanced stage of this litigation, the Court declines to exercise it discretion and sua sponte address the statute of limitations.
a. False Arrest
When "officers conduct a warrantless arrest without probable cause, they violate the Fourth Amendment and therefore open themselves to suit under 42 U.S.C. § 1983 for damages." Stallworth v. Hurst, No. 21-10731, 2021 WL 6143557, at *2 (11th Cir. Dec. 30, 2021) (per curiam) (first citing Case v. Eslinger, 555 F.3d 1317, 1326 (11th Cir. 2009); and then citing Marx v. Gumbinner, 905 F.2d 1503, 1505 (11th Cir. 1990)), petition for cert. filed, No. 21-1501, — U.S. —, 143 S.Ct. 101, 214 L.Ed.2d 22 (U.S. May 31, 2022). "But probable cause is an 'absolute bar to a section 1983 action for false arrest.' " Id. (quoting Case, 555 F.3d at 1326-27). "And, in the Fourth Amendment context, an officer need only have 'arguable' probable cause to claim qualified immunity." Id. (citing Wood v. Kesler, 323 F.3d 872, 878 (11th Cir. 2003)).
"Probable cause requires more than mere suspicion, but does not require convincing proof." Bailey v. Bd. of Cnty. Comm'rs, 956 F.2d 1112, 1120 (11th Cir. 1992). "Indeed, '[t]he Constitution does not guarantee that only the guilty will be arrested. If it did, § 1983 would provide a cause of action for every defendant acquitted.' " Id. (alteration in original) (quoting Baker v. McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). "Probable cause exists when 'the facts and circumstances within the officer's knowledge, of which he or she has reasonably trustworthy information, would cause a prudent person to believe, under the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense.' " Wilkerson v. Seymour, 736 F.3d 974, 978 (11th Cir. 2013) (quoting Lee, 284 F.3d at 1195). "The probable cause standard is objective, requiring only 'that an arrest be objectively reasonable under the totality of the circumstances.' " Holland v. City of Auburn, 657 F. App'x 899, 903 (11th Cir. 2016) (per curiam) (quoting Bailey, 956 F.2d at 1119). An officer possesses "arguable probable cause" if "reasonable officers in the same circumstances and possessing the same knowledge as the [d]efendants could have believed that probable cause existed to arrest." Richmond v. Badia, 47 F.4th 1172, 1181 (11th Cir. 2022) (quoting Von Stein v. Brescher, 904 F.2d 572, 579 (11th Cir. 1990)).
Here, Defendants Carr and Henry had reasonable suspicion based on the domestic violence 911 call to stop and detain Plaintiff. See United States v. Bruce, 977 F.3d 1112, 1116 (11th Cir. 2020) (holding that an "officer's investigatory stop was justified based on a reasonable suspicion of criminal activity"), cert. denied, — U.S. —, 141 S. Ct. 2541, 209 L.Ed.2d 562 (2021); see, e.g., United States v. Saunders, 775 F. App'x 500, 504 (11th Cir. 2019) (per curiam) (explaining that "officers had reasonable suspicion to stop [the defendant] based [in part] on . . . [a victim's] 911 call accusing [the defendant] of choking her"). The investigatory stop revealed significant evidence to establish probable cause, or at least arguable probable cause, to support two bases to arrest Plaintiff.
In addition to driving under the influence and without a license, Defendants argue that they had probable cause to arrest Plaintiff for obstruction. (Doc. 28-3 at 4-5). Whether there was probable cause for an obstruction charge is highly questionable. As there was clearly probable cause to arrest Plaintiff on other charges, the Court does not consider Defendants' argument with regard to obstruction.
First, Defendants Carr and Henry had probable cause to arrest Plaintiff for driving under the influence of alcohol. Under O.C.G.A. § 40-6-391(a), "[a] person shall not drive or be in actual physical control of any moving vehicle while . . . [u]nder the influence of alcohol to the extent that it is less safe for the person to drive." Here, Plaintiff's girlfriend had reported that Plaintiff had been drinking, and Defendant Carr reported that he smelled an odor of alcohol on Plaintiff's breath. (Doc. 28-2 ¶ 1; Doc. 28-1 at 4). Moreover, Plaintiff clearly was inebriated given his speech and actions, and he admitted to "drinking a lot." (Doc. 28-2 ¶ 20; Body Cam. at 05:13-05:21, 08:25-08:26). Both the Eleventh Circuit and our sister courts have found that such information establishes probable cause to arrest a suspect for driving under the influence of alcohol. See, e.g., Alday v. Groover, 601 F. App'x 775, 777 (11th Cir. 2015) (per curiam) (affirming a district court's finding that the defendant officer had probable cause to arrest the plaintiff under O.C.G.A. § 40-6-391(a) when the defendant "smelled an odor of alcohol and [the plaintiff] admitted to drinking"); Hall v. Ga., Dep't of Pub. Safety, No. 1:14-cv-03295-LMM, 2015 WL 12867005, at *8 (N.D. Ga. June 30, 2015) (noting that "an officer, '[e]ven in the absence of accurate field sobriety tests,' had probable cause to arrest an individual for driving under the influence . . . [after] 'hearing him admit to recent drinking' ") (quoting State v. Day, 237 Ga.App. 771, 516 S.E.2d 822, 824 (1999)), aff'd, 649 F. App'x 698 (11th Cir. 2016) (per curiam). Furthermore, even Plaintiff admits that Defendants Carr and Henry had a basis to arrest him for drunk driving and driving without a valid driver's license. (Doc. 28-2 ¶ 31; Doc. 31 at 73:3-12). Thus, Defendants Carr and Henry had probable cause to arrest Plaintiff for driving under the influence under O.C.G.A. § 40-6-391(a).
Moreover, Defendants Carr and Henry had at least arguable probable cause to arrest Plaintiff for driving without a valid driver's license. O.C.G.A. § 40-5-121 makes it illegal to "drive[ ] a motor vehicle on any public highway . . . without being licensed . . . or at a time when his or her privilege to so drive is suspended, disqualified, or revoked." During the stop, Defendants Carr and Henry discovered that Plaintiff did not have an active driver's license, a fact Plaintiff admitted to during his deposition. (Doc. 31 at 72:22-73:8); see, e.g., McKally v. Perez, 87 F. Supp. 3d 1310, 1316 (S.D. Fla. 2015) (finding under a similar Florida statute that "reasonable officers who observed [the plaintiff] driving with a suspended license . . . could have believed probable cause existed to carry out an arrest"). Thus, Defendants Carr and Henry also had probable cause, or at least arguable probable cause, to arrest Plaintiff for driving without a valid license.
As Defendants Carr and Henry had probable cause to arrest Plaintiff for either of these violations, there was no constitutional violation and Defendants Carr and Henry are entitled to summary judgment with regard to Plaintiff's false arrest claim.
b. Malicious Prosecution
Plaintiff's malicious prosecution claim against Defendants Carr and Henry likewise is subject to summary judgment. (See Doc. 3 ¶¶ 20, 26(c); Doc. 38 at 1 n.1). "[P]robable cause defeats a claim of malicious prosecution." Black v. Wigington, 811 F.3d 1259, 1267 (11th Cir. 2016). Moreover, because the criminal charges against Plaintiff are still pending, Plaintiff cannot show that the criminal proceedings have terminated in his favor. See Kelly v. Serna, 87 F.3d 1235, 1239 (11th Cir. 1996) ("[A] cause of action for malicious prosecution does not accrue until the criminal proceedings have terminated in the plaintiff's favor, so also a § 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated." (quoting Heck v. Humphrey, 512 U.S. 477, 489, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994))). Plaintiff recognizes that this claim is premature and "does not intend to contest the dismissal of this claim." (Doc. 38 at 1 n.1). Accordingly, Defendants are entitled to summary judgment with regard to Plaintiff's federal malicious prosecution claim.
c. Excessive Force
Plaintiff also alleges that Defendants Carr and Henry used excessive force during his arrest when they pushed him to the ground and tased him. (See Doc. 3 ¶¶ 15-16, 25). "When a plaintiff alleges excessive force during an investigation or arrest, the federal right at issue is the Fourth Amendment right against unreasonable seizures." Tolan v. Cotton, 572 U.S. 650, 656, 134 S.Ct. 1861, 188 L.Ed.2d 895 (2014) (per curiam) (citing Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). "[T]he right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." Graham, 490 U.S. at 396, 109 S.Ct. 1865 (citation omitted). "An officer's use of force, however, violates the Fourth Amendment when it is objectively unreasonable under the facts and circumstances of a specific case, 'judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.' " Stephens v. DeGiovanni, 852 F.3d 1298, 1321 (11th Cir. 2017) (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865); Richmond, 47 F.4th at 1179-81, 1182-83. To determine whether an officer used excessive force, courts conduct a two-step inquiry. "First, [courts] ask whether the specific kind of force is categorically unconstitutional. Second, if the kind of force is not categorically unconstitutional, [courts] then ask, weighing the factors set forth in Graham, whether the amount of force was excessive." Charles v. Johnson, 18 F.4th 686, 699 (11th Cir. 2021) (citation omitted).
The Eleventh Circuit has "never held that a tackle [or a push] is a categorically unconstitutional kind of force." Id. The Eleventh Circuit has also stated that "[t]he use of a taser is not categorically unconstitutional" and has "found that the use of a taser can be appropriate in a wide array of situations." Id. at 701 (citations omitted). Thus, "[t]he only question is whether [Defendant Carr and Henry's] use of [a push or] taser constituted excessive force under the totality of the circumstances." Id.
"At summary judgment, [courts] cannot simply accept the officer's subjective version of events, but rather must reconstruct the event in the light most favorable to the non-moving party and determine whether the officer's use of force was excessive under those circumstances." Fils v. City of Aventura, 647 F.3d 1272, 1288 (11th Cir. 2011) (citation omitted). And "when 'opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it,' a court should not adopt the contradicted version for purposes of ruling on a motion for summary judgment." Singletary v. Vargas, 804 F.3d 1174, 1183 (11th Cir. 2015) (citing Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)). This is especially true "where videotape footage clearly contradict[s]" facts and testimony. Id. (citing Scott, 550 U.S. at 380, 127 S.Ct. 1769); see also Richmond, 47 F.4th at 1179 ("Although we must view the facts in favor of the nonmoving party, we accept video evidence over the nonmoving party's account when the former obviously contradicts the latter." (citing Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1315 (11th Cir. 2010))); see, e.g., Owens v. Christian, No. 5:17-cv-190-TES-CHW, 2019 WL 1804942, at *4 (M.D. Ga. Mar. 25, 2019) (granting the defendant's motion for summary judgment when "video evidence flatly contradict[ed the p]laintiff's excessive-force allegations"), R. & R. adopted, 2019 WL 1804848 (M.D. Ga. Apr. 24, 2019).
"Determining whether the force used to effect a[n arrest] was objectively reasonable requires case-by-case 'balancing of "the nature and quality of the intrusion on the individual's Fourth Amendment interests" against the countervailing governmental interests at stake.' " Stephens, 852 F.3d at 1321 (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865). To do this, courts evaluate six factors:
(1) the severity of the suspect's crime, (2) whether the suspect poses an immediate threat of harm to others, (3) whether the suspect is actively resisting arrest or trying to flee, (4) the need for the use of force, (5) the relationship between the need for force and the amount of force used, and (6) how much injury was inflicted.Wade v. Daniels, 36 F.4th 1318, 1325 (11th Cir. 2022) (citing Mobley v. Palm Beach Cnty. Sheriff Dep't, 783 F.3d 1347, 1353 (11th Cir. 2015) (per curiam)). A defendant need not show that all the factors weighed in his favor for his use of force to have been objectively reasonable. See Shaw, 884 F.3d at 1099 n.5 (holding that the defendant's use of force was objectively reasonable despite the absence of the first and third factors); see also Cantu v. City of Dothan, 974 F.3d 1217, 1229 (11th Cir. 2020) ("Not all of the factors are relevant to all excessive force cases." (citation omitted)). The use of "de minimis force, without more, will not support a" Fourth Amendment excessive force claim. Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000).
Under the first factor, the severity of the crime at issue, Plaintiff was under investigation for the misdemeanor crime of domestic violence. See Bell v. Hargrove, 313 Ga. 30, 867 S.E.2d 101, 103 (2021) (noting that domestic violence is a misdemeanor offense). Probable cause gave rise to a reasonable suspicion that Plaintiff was driving under the influence and without a license. Plaintiff was also charged with obstruction for failing to immediately comply with Defendants Carr and Henry. In Stephens v. DeGiovanni, the Eleventh Circuit held that the plaintiff's obstruction without violence and driving without a driver's license were not severe enough to justify the defendant officer's use of force. 852 F.3d at 1322. In Charles v. Johnson, the Eleventh Circuit found that an officer's use of a tackle and another deputy's later use of a taser were reasonable when the plaintiff was charged with obstruction and failed to obey multiple commands from the deputies. 18 F.4th at 700-01. Here, as Plaintiff's alleged obstruction did not involve violence, and as it is a stretch to say Plaintiff failed to obey multiple commands when he was not given time to comply, this case is akin to Stephens and the first factor weighs in Plaintiff's favor.
The second factor examines whether the plaintiff "pose[d] an immediate threat to the safety of the officers or others." Graham, 490 U.S. at 396, 109 S.Ct. 1865. Here, based on Defendant Carr's body camera footage, Plaintiff did not appear to pose any immediate threat. At the time he was pushed to the ground, Plaintiff was slowly turning his back toward Defendants Carr and Henry—and may have been attempting to comply. (Body Cam. At 00:02-00:04). Regardless, he arguably was not given time to comply with the order to get to the ground. Likewise, with regard to the command to put his hands behind his back, it cannot be ignored that Defendants Carr and Henry had Plaintiff pinned to the ground and, again, gave him only seconds to comply before Defendant Henry yelled that Plaintiff "was fixin' to get tased" and Defendant Carr tased him. (Body Cam. At 00:12-00:13); see, e.g., Boozer v. Sarria, No. 1:09-CV-2102-TWT, 2010 WL 3937164, at *6 (N.D. Ga. Oct. 4, 2010) (finding that the plaintiff did not "pose any threat to their safety while he was lying on the ground"). Tellingly, neither Defendants Carr and Henry's Motion nor their police report mention that Plaintiff posed an immediate threat to their safety or others. (See generally Doc. 28-3 at 6-11; Doc. 28-1 at 4); see, e.g., Koch v. City of Del City, 660 F.3d 1228, 1247 (10th Cir. 2011) (holding that the second factor weighed in favor of the plaintiff when the defendant did not argue that the plaintiff posed an immediate threat); S.H. v. Dist. of Columbia, 270 F. Supp. 3d 260, 294 (D.D.C. 2017) (finding that the Graham factors weighed in the plaintiff's favor because the defendants "never address[ed] whether [they] had reason to believe that [the plaintiff] posed a threat to their safety"). Thus, the second factor weighs in favor of Plaintiff.
The third factor asks whether the plaintiff was actively resisting or attempting to flee. See Graham, 490 U.S. at 396, 109 S.Ct. 1865. As noted above, while Plaintiff failed to comply within seconds of being given the command to get on the ground and put his hands behind his back, there is a genuine issue of material fact as to whether he was given the opportunity to do so and whether his behavior can be deemed as active resistance. See Koger v. Carson, 853 F. App'x 341, 346 (11th Cir. 2021) (per curiam) (noting that neither dashcam footage nor testimony resolved whether the plaintiff was resisting and concluding that "a genuine dispute of fact remain[ed] as to whether [the defendant] used excessive force against" the plaintiff); Patel v. City of Madison, 959 F.3d 1330, 1339-40 (11th Cir. 2020) ("Because a jury could reasonably find that [the plaintiff] was not resisting, it could reasonably conclude that [the defendant] 'had no reason to use the force he did . . . .' "). Construing the facts in the light most favorable to the nonmoving party—Plaintiff—the third factor weighs in Plaintiff's favor.
The fourth factor examines the officer's need for the use of force. See Wade, 36 F.4th at 1325. Generally, courts have found that there is "a clear need for the use of force" when criminal suspects physically resist, ignore commands, "menace . . . officers[,] or lead them on an extended chase." Suggs v. Ingram, No. 5:19-cv-00065-TES-CHW, 2020 WL 2529853, at *3 (M.D. Ga. Apr. 28, 2020), R. & R. adopted, 2020 WL 2530307 (M.D. Ga. May 18, 2020); Patel, 959 F.3d at 1341 (citing Smith v. Mattox, 127 F.3d 1416, 1420 (11th Cir. 1997) (per curiam)). Although the severity of the alleged crime is a consideration, the need for the use of force factor hinges on whether "a reasonable officer on the scene could have believed [the plaintiff] posed a danger to himself or others and was actively resisting arrest." Smith v. LePage, 834 F.3d 1285, 1295 (11th Cir. 2016); see also Crenshaw v. Lister, 556 F.3d 1283, 1292-93 (11th Cir. 2009) (per curiam) (collecting cases). Defendants claim that forcing Plaintiff to the ground was necessary because Plaintiff failed to comply and because of "the nature of the investigation into a domestic violence report." (Doc. 28-3 at 9). Similarly, Defendants contend that use of the taser was necessary because Plaintiff "refused to put his hands behind his back after being repeatedly commanded to do so" and to "prevent 'further hands on force' that could result in injury." (Id. at 10). As noted above, there is a genuine issue of material fact as to whether Plaintiff was resisting and failing to comply with commands. That Plaintiff was suspected of domestic violence is not itself sufficient to justify the force used here because there is no evidence that Plaintiff "was a particularly dangerous criminal or that his offense was especially egregious." See, e.g., Getzen v. Yavapai County, No. CV 18-08093-PCT-SRB (DMF), 2021 WL 3934668, at *5 (D. Ariz. Aug. 9, 2021) (quoting Smith v. City of Hemet, 394 F.3d 689, 703 (9th Cir. 2005) (en banc)), appeal filed, No. 21-16437 (9th Cir. Sept. 2, 2021); Tillard v. Strawser, No. CV 20-00922-PHX-JAT (DMF), 2022 WL 220488, at *7 (D. Ariz. Jan. 25, 2022) (finding there was "no need for any force" when the plaintiff "charged with assault/domestic violence,"—among other charges—"and there was no evidence [the p]laintiff posed any threat or was resisting [the defendant] in any way"). Construing the facts in the light most favorable to the nonmoving party—Plaintiff—the fourth factor weighs in Plaintiff's favor.
Under the fifth factor, courts analyze the relationship between the need for force and the amount of force used. See Wade, 36 F.4th at 1325. "[T]o determine whether the amount of force used by a police officer was proper, a court must ask whether a reasonable officer would believe that this level of force [was] necessary in the situation at hand." Lee, 284 F.3d at 1197 (citation omitted). "Proportionality is preeminent in the excessive-force context," therefore when a "reasonable jury could conclude that the . . . force [an officer] employed was drastically in excess of what" a criminal suspect's behavior or actions "warranted," the fifth factor will weigh in the plaintiff's factor. See Patel, 959 F.3d at 1340 (first citing Saunders v. Duke, 766 F.3d 1262, 1269 (11th Cir. 2014); and then citing Lee, 284 F.3d at 1197). Again, if Plaintiff "was indeed compliant and non-resisting, as [the Court] must accept here, [Defendants Carr and Henry's] use of force was objectively unreasonable." See Koger, 853 F. App'x at 345. Construing the facts in the light most favorable to the nonmoving party—Plaintiff—the fifth factor weighs in Plaintiff's favor.
Although not one of the original Graham factors, the Eleventh Circuit has also instructed district courts to consider the extent of the injury inflicted in determining whether the force was excessive. See Richmond, 47 F.4th at 1182-83 (citing Saunders, 766 F.3d at 1267). Here, the injuries attributable to Defendant Carr and Henry's push and taser application were minor. Plaintiff alleges that while he was in jail, he felt pain in his upper back area and that he "continues to suffer physical and psychological harm, pain and suffering." (Doc. 3 ¶ 24; Doc. 31 at 58:19). The pain and suffering Plaintiff suffered "are entirely consistent with a routine take-down" and a five-second taser shot. See Charles, 18 F.4th at 700. When Plaintiff was picked up off the ground, he did not complain of injury. (Doc. 28-2 ¶¶ 16, 22; Body Cam. at 01:50-02:38, 06:16-06:25). Of course, he was visibly inebriated, but Plaintiff's body language also does not indicate any serious harm. In cases with more egregious injuries, the Eleventh Circuit has held that those injuries were de minimis. See, e.g., Nolin, 207 F.3d at 1255, 1258 (holding that a plaintiff's bruising constituted a de minimis injury when the defendant officer "grabbed him from behind by the shoulder and wrist, threw him against a van three or four feet away, kneed him in the back and pushed his head into the side of the van"); Taylor v. Taylor, 649 F. App'x 737, 741, 746-47 (11th Cir. 2016) (per curiam) (holding that a "spiral fracture" and "multiple contusions" were de minimis). Thus, this factor weighs in favor of Defendants Carr and Henry.
"A plaintiff who suffers only a de minimis injury does not necessarily lack a claim for excessive force under § 1983." Charles, 18 F.4th at 700 (first citing Stephens, 852 F.3d at 1328 n.33; and then citing Saunders, 766 F.3d at 1270). "However, the resulting injuries can be evidence of the kind or degree of force that was used by the officer." Id. (citing Crocker v. Beatty, 995 F.3d 1232, 1251 (11th Cir. 2021), cert. denied, — U.S. —, 142 S. Ct. 845, 211 L.Ed.2d 522 (2022)); see also Gomez v. United States, 601 F. App'x 841, 850 (11th Cir. 2015) (quoting Nolin, 207 F.3d at 1257). When "an officer does not have probable cause to make an arrest, any amount of force to achieve that arrest, even de minimis, is excessive." Lambert v. Herrington, No. 21-10452, 2022 WL 2345769, at *7 (11th Cir. June 29, 2022) (per curiam) (citing Nolin, 207 F.3d at 1258). The Eleventh Circuit has also "consistently held that gratuitous use of force when a criminal suspect is not resisting arrest constitutes excessive force." Koger, 853 F. App'x at 345 (first citing Stryker v. City of Homewood, 978 F.3d 769, 775 (11th Cir. 2020); and then citing Hadley v. Gutierrez, 526 F.3d 1324, 1330 (11th Cir. 2008)); Richmond, 47 F.4th at 1184-85 (collecting cases). In McCall v. Crosthwait, the Eleventh Circuit noted that it has "repeatedly held that a push or shove that causes pain and necessitates no or merely minor medical treatment is not a violation of the Fourth Amendment, even where the arrestee was handcuffed and no further force was necessary." 336 F. App'x 871, 872-73 (11th Cir. 2009) (per curiam) (first citing Jones v. City of Dothan, 121 F.3d 1456, 1460-61 (11th Cir. 1997) (per curiam); and then citing Post v. City of Fort Lauderdale, 7 F.3d 1552, 1556 (11th Cir. 1993), modified, 14 F.3d 583 (11th Cir. 1994)). In cases decided after McCall, however, the Eleventh Circuit has "not[ed] that the de minimis force principle 'has never been used to immunize officers who use excessive and gratuitous force after a suspect has been subdued, is not resisting, and poses no threat.' " Baysa v. Sheriff of Pinellas Cnty. Sheriff's Off., No. 21-13943, 2022 WL 2974110, at *3 (11th Cir. July 27, 2022) (per curiam) (quoting Saunders, 766 F.3d at 1269-70); c.f. Bratt v. Genovese, No. 8:13-CV-3210-T-36AEP, 2015 WL 12835684, at *6 (M.D. Fla. Nov. 23, 2015) (explaining that the court "disagree[d] with [the officer's] position that the use of a taser constitutes only the application of de minimis force"), aff'd, 660 F. App'x 837 (11th Cir. 2016) (per curiam). Given the lack of clarity regarding whether Plaintiff was resisting, "a genuine dispute of fact remains as to whether [Defendants] used excessive force against [Plaintiff]." Koger, 853 F. App'x at 346.
While the existence of a genuine issue of material fact regarding whether Plaintiff was resisting prevents the Court from determining if Defendants Carr and Henry's use of force was objectively reasonable, Defendants Carr and Henry would be entitled to qualified immunity if Plaintiff cannot show that their conduct violated a "clearly established constitutional right[ ] of which a reasonable official would have known." Baysa, 2022 WL 2974110, at *1 (citing Jackson v. Sauls, 206 F.3d 1156, 1164 (11th Cir. 2000)). "The contours of the right 'must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.' " Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Charles, 18 F.4th at 698 (citations omitted). "Plaintiffs have the burden of demonstrating that [d]efendants—at the pertinent time and given the specific circumstances of this case—had fair notice that their conduct would violate clear federal law." Long v. Slaton, 508 F.3d 576, 584 (11th Cir. 2007) (citation omitted). "A plaintiff can show that a right was clearly established in any of three ways." Baysa, 2022 WL 2974110, at *2 (citing Patel, 959 F.3d at 1343). A plaintiff may show that (1) "a materially similar case has already been decided," (2) "a broader, clearly established principle should control the novel facts in this situation," or (3) "the conduct so obviously violates the Constitution that prior case law is unnecessary." Id. (citing Patel, 959 F.3d at 1343). Regarding case law, "published opinions from other circuits and non-published opinions from [the Eleventh Circuit]" do not "create clearly established law." Gregory v. Miami-Dade County, 719 F. App'x 859, 869 n.8 (11th Cir. 2017); see Charles, 18 F.4th at 698 (citations omitted); 11th Cir. R. 36-2.
Plaintiff argues, under the first method, that this case is like Fils and therefore Defendants Carr and Henry had fair warning that their conduct violated clearly established federal law. (Doc. 38 at 3, 5-6 (citing Fils, 647 F.3d at 1292)). In Fils, the Eleventh Circuit held that the defendant-officers were not entitled to qualified immunity and that their use of a taser was excessive because the plaintiff "committed at most a minor offense; he did not resist arrest; he did not threaten anyone; and he did not disobey any instructions (for none were given)." 647 F.3d at 1292. The Eleventh Circuit based its holding on Priester v. City of Riviera Beach, 208 F.3d 919 (11th Cir. 2000), and Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002). "In Priester, the defendant-officer set his attack dog on the plaintiff even though the plaintiff had submitted to the defendant-officer's every command and was lying flat on the ground." Fils, 647 F.3d at 1292 (citing Priester, 208 F.3d at 927). "And, in Vinyard, the defendant-officer sprayed pepper spray into the eyes of a non-violent plaintiff, who was handcuffed safely in the backseat of the defendant-officer's police car, and had threatened no one." Id. (citing Vinyard, 311 F.3d at 1347-48). Despite finding that Priester and Vinyard were not identical to the plaintiff's case, the Eleventh Circuit explained that "[t]hese two cases clearly establish that such force is excessive where the suspect is non-violent and has not resisted arrest." Id. (emphasis added).
By contrast, in Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004), the Eleventh Circuit found that a sheriff's use of a taser was not excessive when the plaintiff was "hostile, belligerent, and uncooperative," refused five times to comply with the sheriff's commands to retrieve documents from his truck cab, and "used profanity, moved around and paced in agitation, and repeatedly yelled at" the sheriff after being pulled over for a "tag light violation" and obstruction under O.C.G.A. § 16-10-24(a). Draper, 369 F.3d at 1276. The Eleventh Circuit also noted that "[a]lthough being struck by a taser gun is an unpleasant experience, the amount of force [the sheriff] used—a single use of a taser gun causing a one-time shocking—was reasonably proportionate to the need for force and did not inflict any serious injury." Id.
"[C]learly established law must be 'particularized' to the facts of the case." Id. (citation omitted). The Supreme Court has explained that there does not have to be "a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate." Mullenix v. Luna, 577 U.S. 7, 12, 136 S.Ct. 305, 193 L.Ed.2d 255 (2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)). "This exacting standard 'gives government officials breathing room to make reasonable but mistaken judgments' by 'protect[ing] all by the plainly incompetent or those who knowingly violate the law.' " City & County of San Francisco v. Sheehan, 575 U.S. 600, 611, 135 S.Ct. 1765, 191 L.Ed.2d 856 (2015) (alteration in original) (quoting Ashcroft, 563 U.S. at 743, 131 S.Ct. 2074). "Such specificity is especially important in the Fourth Amendment context, where . . . '[i]t is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts." Mullenix, 577 U.S. at 12, 136 S.Ct. 305 (alteration in original) (quoting Saucier, 533 U.S. at 205, 121 S.Ct. 2151).
"[A]t the time of Plaintiff's arrest, it was clearly established that a police officer cannot tase an individual who is not violent and not resisting arrest." See Hernandez v. Miami-Dade County, No. 1:21-CV-22656-JLK/Becerra, 2022 WL 2194635, at *5 n.4 (S.D. Fla. May 31, 2022) (emphasis added) (first citing Fils, 647 F.3d at 1292; and then citing Mattox, 127 F.3d at 1419-20), R. & R. adopted, 2022 WL 2191686 (S.D. Fla. June 17, 2022); see also Stryker, 978 F.3d at 775 (citing Fils, 647 F.3d at 1288-89). Here, "there is a jury question as to the accuracy of [Plaintiff's] version of the events . . . and, accepting [Plaintiff's] version as true, the law was clearly established at the time the force [Defendants Carr and Henry] used was constitutionally excessive." See Baysa, 2022 WL 2974110, at *3 (affirming the district court's denial of the defendant's summary judgment motion). "This does not mean, of course, that [Defendants Carr and Henry] will not ultimately be entitled to immunity." See Mattox, 127 F.3d at 1420. "If a jury, for example through special interrogatories, indicates that it believes [Defendants Carr and Henry's] testimony that [Plaintiff] continued to resist arrest until" he was tased, "it will be appropriate for the . . . [C]ourt to revisit the issue whether [Defendants Carr and Henry's] force was patently unreasonable." See id.; see also id. n.12 (noting that a "district court may grant qualified immunity following trial based on [a] jury's fact-findings") (citing Stone v. Peacock, 968 F.2d 1163, 1166 (11th Cir. 1992) (per curiam)). Accordingly, Defendants are not entitled to summary judgment with regard to Plaintiff's excessive force claim.
II. State-Law Claims
Plaintiff's remaining claims allege violations of Georgia law against Defendants Carr and Henry for the "torts of assault, battery, false arrest, false imprisonment, and malicious prosecution." (See Doc. 3 ¶ 26). Defendants argue that "[o]fficial immunity bars Plaintiff's state-law tort claims because [Defendants Carr and Henry's] conduct was discretionary and there is no evidence they acted with actual malice toward Plaintiff." (Doc. 28-3). Plaintiff did not respond to this argument. (See Doc. 38).
Like his abandoned federal claims discussed above, Plaintiff's state-law claims are also abandoned because he failed to brief and argue these issues. See LaFleur, 587 F. App'x at 540; Clark, 544 F. App'x at 855. "[I]n opposing a motion for summary judgment, a party may not rely on his pleadings to avoid judgment against him." B & D Nutritional Ingredients, Inc. v. Unique Bio Ingredients, LLC, 758 F. App'x 785, 790 (11th Cir. 2018) (per curiam) (quoting Resol. Tr. Corp. v. Dunmar Corp., 43 F.3d 587, 598 (11th Cir. 1995) (en banc)). "The parties bear the burden of formulating arguments at summary judgment. It is not the district court's responsibility to 'distill every potential argument that could be made based on the materials before it on summary judgment." Id. (citations omitted). "[G]rounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned." Id. (citation omitted).
Even if the Court were to consider these claims, they too would fail. "Under Georgia's constitution, official immunity 'protects an officer from personal liability arising from his performance of "official functions" as long as the officer did not act with "actual malice" or "actual intent to cause injury." ' " Harris ex rel. Davis v. Autry, No. 20-13480, 2022 WL 392169, at *4 (11th Cir. Feb. 9, 2022) (per curiam) (quoting Gates v. Khokhar, 884 F.3d 1290, 1304 (11th Cir. 2018)); see also Ga. Const. art. I, § 2, ¶ IX(d). Additionally, "official immunity protects officers 'who perform discretionary acts in a negligent manner.' " Speight v. Griggs, 579 F. App'x 757, 760 (11th Cir. 2014) (per curiam) (quoting Logue v. Wright, 392 S.E.3d 235, 237 (Ga. 1990)); Williams v. DeKalb County, 308 Ga. 265, 840 S.E.2d 423, 428 (2020). "Actual malice is the 'deliberate intention to do wrong.' Establishing actual malice to overcome official immunity is a high bar; it's 'not established merely by showing that the defendant acted with "ill will." ' " Harris, 2022 WL 392169, at *5 (first quoting Adams v. Hazelwood, 271 Ga. 414, 520 S.E.2d 896, 898 (1999); and then quoting Gates, 884 F.3d at 1304).
As discussed above, it is undisputed that Defendants Carr and Henry were performing a discretionary action within the scope of their official authority. There is no evidence to support that Defendants Carr and Henry acted with actual malice or intended to cause injury as defined by Georgia law. Accordingly, Defendants are entitled to summary judgment with regard to Plaintiff's state-law claims.
CONCLUSION
Accordingly, Defendants' Motion for Summary Judgment (Doc. 28) is GRANTED in part and DENIED in part. Defendants' Motion is DENIED with regard to Plaintiff's excessive force claim and GRANTED with regard to Plaintiff's remaining claims.
SO ORDERED, this 24th day of August, 2022.