Trudy Mighty v. Miguel Carballosa , 659 F. App'x 969 ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-14058
Non-Argument Calendar
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D.C. Docket No. 1:14-cv-23285-FAM
TRUDY MIGHTY,
as personal representative of the
Estate of David N. Alexis, deceased,
Plaintiff - Appellee,
versus
MIAMI-DADE COUNTY
a Political subdivision of the State of Florida, et al.,
Defendants,
MIGUEL CARBALLOSA,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
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(August 10, 2016)
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Before HULL, MARCUS, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Plaintiff Trudy Mighty, as personal representative of her son’s estate, sues
Defendant Miguel Carballosa, alleging federal and state-law claims arising out of
the shooting death of her son. Defendant appeals the district court’s denial of his
motion to dismiss. After careful review, we affirm in part and dismiss in part.
I. Background
On the evening of October 2, 2012, 26-year-old David Alexis left work at
North Shore Hospital to return to his parents’ Miami home. Defendant, a police
officer assigned to the Robbery Intervention Detail Unit of the Miami–Dade Police
Department, was sitting in an unmarked pickup truck across from the house when
Alexis arrived. Alexis pulled up in front of the house and got out of the car so he
could open the gates to the driveway. He was unarmed. While Alexis was outside
of his car and standing at or near the front of his parents’ house, Defendant
confronted Alexis and shot him to death. Defendant fired multiple shots, even
striking Alexis in the back as he turned and tried to go inside the house. Other
unidentified officers might have shot at Alexis, too. According to Plaintiff, Alexis
posed no threat to Defendant at the time of the shooting.
Plaintiff now brings claims on behalf of Alexis’s estate against Defendant in
both his individual and official capacities. Plaintiff alleges that Defendant used
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excessive force in violation of Alexis’s Fourth Amendment rights under 42 U.S.C.
§ 1983 and is liable for wrongful death under Florida law. After Defendant moved
to dismiss, the district court denied qualified immunity and held that Plaintiff
stated a wrongful death claim. 1 Defendant appeals.
II. Discussion
A. Jurisdiction and Standard of Review
We typically do not review denials of motions to dismiss because our
jurisdiction is limited to appeals from “final decisions” of the district court. 28
U.S.C. § 1291; see also In re Hubbard, 803 F.3d 1298, 1305 (11th Cir. 2015) (“A
final decision is usually a final judgment or similar order by which a district court
disassociates itself from a case.” (internal quotation marks and citation omitted)).
There exists however “a small category of decisions that, although they do not end
the litigation, must nonetheless be considered ‘final.’” Swint v. Chambers Cty.
Comm’n, 514 U.S. 35, 42 (1995) (citations omitted). “That small category
includes only decisions that are conclusive, that resolve important questions
separate from the merits, and that are effectively unreviewable on appeal from the
final judgment in the underlying action.” Id. An order denying a motion to
dismiss on the ground of qualified immunity is a “final decision” within the
1
Plaintiff also brought against Miami–Dade County a § 1983 municipal liability claim, as well
as state-law claims for wrongful death, assault and battery, and negligent failure to train. The
district court dismissed these claims, and they are not at issue in this appeal.
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meaning of § 1291. Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009). We thus have
jurisdiction to review Defendant’s claim to qualified immunity.
We review de novo a district court’s denial of a motion to dismiss, applying
the same legal standards that governed the district court. Davila v. Gladden, 777
F.3d 1198, 1203 (11th Cir. 2015). In determining whether dismissal is warranted
on the ground of qualified immunity, we accept the allegations in the complaint as
true and construe the facts in the plaintiff’s favor. Id.
B. Section 1983 Claim
With respect to the individual capacity § 1983 claim, Defendant argues that
Plaintiff failed to satisfy basic pleading standards by failing to allege facts
sufficient to state a plausible Fourth Amendment violation. In evaluating whether
Defendant is entitled to qualified immunity, we look to whether Plaintiff has
alleged (1) the violation of a constitutional right (2) that was clearly established at
the time of the incident.2 See St. George v. Pinellas Cty., 285 F.3d 1334, 1337
(11th Cir. 2002). A Fourth Amendment excessive force claim is analyzed under
the “objective reasonableness” standard. Id. Reasonableness is assessed based on
all “the facts confronting the officer, regardless of the officer’s underlying intent or
motivation.” Id. Factors relevant to this analysis include the severity of the crime
2
Plaintiff does not dispute that Defendant was acting within the scope of his discretionary
authority at the time of his actions. See Terrell v. Smith, 668 F.3d 1244, 1250 (11th Cir. 2012)
(explaining that in the first step of the qualified immunity analysis, a defendant must show that
he was acting within his discretionary authority).
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at issue, whether the suspect posed an immediate threat of harm, and whether the
suspect was actively resisting arrest or attempting to evade arrest by flight. Penley
v. Eslinger, 605 F.3d 843, 850–51 (11th Cir. 2010). Use of force is judged “from
the perspective of a reasonable officer on the scene, rather than with the 20/20
vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396 (1989).
Defendant argues that the only well-pleaded facts establish that Alexis
arrived at his parents’ home and was confronted and shot by Defendant as Alexis
stood unarmed. 3 Without more, Defendant insists that these facts are insufficient
to allow the court to draw a reasonable inference that Defendant acted
unreasonably in shooting Alexis. Thus, the mere possibility that Defendant acted
unlawfully is insufficient to survive a motion to dismiss. See Chaparro v. Carnival
Corp., 693 F.3d 1333, 1337 (11th Cir. 2012) (“A facially plausible claim must
allege facts that are more than merely possible.”). “The plausibility standard ‘calls
for enough fact to raise a reasonable expectation that discovery will reveal
evidence’ of the defendant’s liability.” Id. (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 556 (2007)).
3
Plaintiff did allege several additional facts based “upon information and belief,” such as that
there was no reason to suspect Alexis of engaging in robberies, at no time did Alexis do anything
that would have justified the use of deadly force, and Alexis was not being placed under arrest,
as he had done nothing wrong. The district court did not consider these facts because Plaintiff
had failed to oppose Defendant’s argument that they should not be considered. Although
Plaintiff now asks us to consider these allegations on appeal, we find that Plaintiff states a claim
even without considering the allegations made upon information and belief.
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Construing the amended complaint in Plaintiff’s favor, we agree with the
district court that Plaintiff has alleged a plausible Fourth Amendment violation.
Plaintiff alleges that Alexis was unarmed and standing in front of his parents’
home when he was shot and killed shortly after arriving home from work. He was
even shot at least once in the back as he attempted to retreat indoors. Based on
these facts, we infer that Alexis was not committing or attempting to commit a
crime, as he was simply returning home. Nor was he fleeing or actively resisting
arrest. These facts support Plaintiff’s allegation that Alexis did not pose an
immediate threat of serious harm when he was shot. In other words, assuming
these allegations are true, Defendant was unprovoked when he shot Alexis, who
objectively posed no threat.
Still, Defendant faults this analysis for improperly shifting the burden to him
to show that his conduct was reasonable when it was Plaintiff’s burden to
overcome qualified immunity. Defendant insists that there are no facts from which
we can infer that Alexis did not pose an imminent threat of death or serious
physical injury or that Defendant acted unreasonably. Specifically, Defendant
criticizes the district court for noting that there were no allegations that Alexis was
an immediate threat, was suspected of having committed a crime, or failed to obey
instructions. Rather than shifting the burden, however, the court was evaluating
the factors relevant to a Fourth Amendment analysis. See Penley, 605 F.3d at 850–
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51. Given the absence of any factor that would justify the use of force, combined
with Plaintiff’s factual allegations that Alexis was unarmed and was at one point
shot in the back while attempting to retreat into the house, the court correctly held
that Plaintiff stated a claim based on Defendant’s unreasonable use of deadly force.
Next, Plaintiff must show that the alleged constitutional violation was
clearly established at the time of the shooting. Plumhoff v. Rickard, 134 S. Ct.
2012, 2023 (2014). To be clearly established, the contours of a right must be
“sufficiently definite that any reasonable official in the defendant’s shoes would
have understood that he was violating it.” Id. “The salient question is whether the
state of the law at the time of [the] incident provided fair warning” to Defendant
that his “alleged conduct was unconstitutional.” Tolan v. Cotton, 134 S. Ct. 1861,
1866 (2014). Our cases have “establish[ed] that unprovoked force against a non-
hostile and non-violent suspect who has not disobeyed instructions violates that
suspect’s rights under the Fourth Amendment.” Fils v. City of Aventura, 647 F.3d
1272, 1289 (11th Cir. 2011). Consequently, the district court properly denied the
motion to dismiss the § 1983 claim against Defendant in his individual capacity.
Finally, Defendant argues that the district court failed to address the official
capacity § 1983 claim against him. Defendant correctly points out that an official
capacity suit against an officer “is simply another way of pleading an action
against an entity of which an officer is an agent.” Busby v. City of Orlando, 931
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F.2d 764, 776 (11th Cir. 1991) (internal quotation marks omitted). Therefore, any
official capacity claim against Defendant is in reality a claim against Miami–Dade
County. Because Plaintiff separately named Miami–Dade County as a defendant,
the official capacity claim was redundant. See id. Moreover, the district court
addressed the § 1983 claim against the county and dismissed it. For that reason,
the district court did not fail to address any substantive claims, and we find no
reversible error.
B. Florida Wrongful Death Claim
Defendant next argues that the district court erred in failing to dismiss the
state-law wrongful death claim when the amended complaint lacked factual
allegations showing that Defendant’s use of force was “clearly excessive” and
arose from an intentional tort. Plaintiff urges this Court to decline pendent
appellate jurisdiction over this claim. As explained above, we have jurisdiction
over a denial of qualified immunity because such orders are treated as “final
decisions” within the meaning of 28 U.S.C. § 1291. Iqbal, 556 U.S. at 672. We
also have the discretion to exercise pendent appellate jurisdiction over an otherwise
nonappealable decision if we already have jurisdiction over another issue in the
same case. Kelly v. Curtis, 21 F.3d 1544, 1555 (11th Cir. 1994). “Under this
doctrine, a federal appellate court may address nonappealable orders if they are
‘inextricably intertwined’ with an appealable decision or if ‘review of the former
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decision [is] necessary to ensure meaningful review of the latter.’” Summit Med.
Assocs., P.C. v. Pryor, 180 F.3d 1326, 1335 (11th Cir. 1999) (quoting Swint, 514
U.S. at 51).
In Moniz v. City of Fort Lauderdale, 145 F.3d 1278, 1281 n.3 (11th Cir.
1998), we held that qualified immunity and standing were not inextricably
intertwined because we could resolve the qualified immunity issue without
reaching the merits of the standing question. While Defendant argues that both the
§ 1983 and wrongful death claims rely on the same underlying facts, the legal
inquiry is not the same. The Fourth Amendment claim requires us to look
objectively at Defendant’s use of force, while the wrongful death claim would
require us to resolve the parties’ disputes over whether, under Florida law, the
force was “clearly excessive” and whether intentional or merely negligent conduct
suffices to state a claim. These issues, while related, are not inextricably
intertwined, and we need not consider the wrongful death claim to ensure
meaningful review of qualified immunity. See id.
What’s more, we would not promote judicial economy or the rationales for
qualified immunity by considering the state-law claim, because we are affirming
the denial of qualified immunity and letting the case proceed to discovery anyway.
In other cases, we have exercised pendent appellate jurisdiction after granting
qualified immunity when consideration of the state claims had the potential to end
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litigation against the defendants entirely. See Kelly, 21 F.3d at 1555–56; see also
Schmelz v. Monroe Cty., 954 F.2d 1540, 1543 (11th Cir. 1992) (exercising pendent
appellate jurisdiction over Eleventh Amendment immunity issue because
resolution of that issue “could put an end to the federal aspects of this case”). We
decline to exercise jurisdiction over the wrongful death claim and thus dismiss the
appeal as to that issue.
III. Conclusion
For all the above reasons, we affirm the denial of qualified immunity and
dismiss the appeal with respect to the state-law wrongful death claim.
AFFIRMED in part and DISMISSED in part.
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