Michael L. Ainsworth v. Kenny Norris , 469 F. App'x 775 ( 2012 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-12573 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 4, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:10-cv-00293-TBM
MICHAEL L. AINSWORTH,
CHERYL AINSWORTH,
llllllllllllllllllllllllllllllllllllllll Plaintiffs-Appellants,
versus
KENNY NORRIS,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellee,
CITY OF TAMPA,
Defendant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 4, 2012)
Before DUBINA, Chief Judge, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Appellants Michael and Cheryl Ainsworth appeal pro se the district court’s
grant of summary judgment based on qualified immunity to Kenny Norris on their
civil rights and related state law claims. The Ainsworths alleged that Norris
unlawfully arrested Michael and, in so doing, used excessive force and committed
the torts of unlawful battery and false arrest. As a result of Michael’s injuries,
Cheryl allegedly suffered a loss of consortium.
We review de novo the grant of a motion for summary judgment based on
qualified immunity, applying the same standards as the district court. Bashir v.
Rockdale Cnty., 445 F.3d 1323, 1326 (11th Cir. 2006). We resolve all issues of
material fact in the plaintiff’s favor and determine whether the defendant is
entitled to qualified immunity under that version of the facts. Id. at 1327. A party
is entitled to summary judgment under Rule 56 if “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). We do not consider issues raised for the first time in a reply
brief. Big Top Koolers, Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839, 844 (11th
Cir. 2008).
A state official is entitled to qualified immunity from a suit for money
damages unless the plaintiff demonstrates that (1) the official violated a
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constitutional right (2) that was clearly established at the time the challenged
conduct occurred. Ashcroft v. al-Kidd, 563 U.S. ___, 131 S. Ct. 2074, 2080, 179
L. Ed. 2d 1149 (2011). The Supreme Court has said that courts may consider
these questions in any order. Id.A warrantless arrest without probable cause violates the Fourth Amendment
and is actionable under 42 U.S.C. § 1983. Rodriguez v. Farrell, 280 F.3d 1341,
1345 (11th Cir. 2002). However, if an officer mistakenly arrests one person who
is not the subject of a warrant instead of a second person who is the subject of a
warrant, the reasonable mistake standard applies to render that arrest valid. Id. at
1346–51 (concluding that, under the totality of the circumstances, an officer who
mistakenly arrests a person who has the same name, sex, age, and race and a
similar Social Security number, address, and place of birth as the subject of a
warrant is entitled to qualified immunity in that situation because the mistake was
reasonable).
Further, although the use of excessive force also violates the Fourth
Amendment, the right to make a lawful arrest carries with it the right to use some
degree of physical force to effect the arrest. Id. at 1352. If the appropriate use of
force aggravates a pre-existing condition, it is not for that reason alone
transformed into excessive force. Id. at 1353. However, an officer’s use of force
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is excessive if his actions are not “objectively reasonable in light of the facts and
circumstances confronting him, without regard to his underlying intent or
motivation.” Zivojinovich v. Barner, 525 F.3d 1059, 1072 (11th Cir. 2008)
(internal quotation marks omitted). An officer is entitled to qualified immunity
from an excessive force claim unless every reasonable officer in his position
would have concluded that his use of force was unlawful. Jones v. City of Dothan,
121 F.3d 1456, 1460 (11th Cir. 1997).
A cognizable excessive force claim “evokes the Fourth Amendment’s
protection against the use of an unreasonable quantum of force (i.e., non-de
minimis force unreasonably disproportionate to the need) in effecting an otherwise
lawful arrest.” Bashir, 445 F.3d at 1332. To analyze such a claim, courts consider
the totality of the circumstances and balance the nature and quality of the intrusion
on the plaintiff’s Fourth Amendment rights against the governmental interests at
stake. Jackson v. Sauls, 206 F.3d 1156, 1169–70 (11th Cir. 2000). The use of
force is judged from the perspective of a reasonable officer on the scene to
determine “whether a reasonable officer would believe that this level of force is
necessary in the situation at hand.” Zivojinovich, 525 F.3d at 1072. The factors a
court considers include whether the individual posed an immediate threat to the
officer or others and whether he was actively resisting arrest. Reese v. Herbert,
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527 F.3d 1253, 1272 (11th Cir. 2008).
Under Florida law, a plaintiff states a cause of action for false imprisonment
if he shows (1) unlawful detention (2) against his will (3) without legal authority
(4) and “which is unreasonable and unwarranted under the circumstances.”
Montejo v. Martin Mem’l Med. Ctr., Inc., 935 So.2d 1266, 1268 (Fla. Ct. App.
2006). Probable cause is an absolute bar to an action for false arrest. Rankin v.
Evans, 133 F.3d 1425, 1435 (11th Cir. 1998). To state a cause of action for the
tort of battery under Florida law, a plaintiff must demonstrate that the defendant
acted with the intent to cause a harmful or offensive contact with him and such
contact occurred. City of Miami v. Sanders, 672 So.2d 46, 47 (Fla. Ct. App.
1996). Also, under Florida law, an alleged battery that was committed incident to
arrest does not give rise to an independent tort. Lester v. City of Tavares, 603
So.2d 18, 19–20 (Fla. Ct. App. 1992).
Based upon the facts considered in the light most favorable to Michael and
Cheryl, we conclude from the record that Norris did not violate Michael’s
constitutional rights when he mistakenly arrested him. Although Michael argues
that his case is distinguishable from Rodriguez, the only differences he cites
involve his previous detentions based on the warrant. The record does not reflect
that Norris knew about any of these prior detentions. Also, under Rodriguez, the
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fact that Michael’s name, sex, race, and date of birth matched those listed on the
warrant demonstrates that Norris’s mistake in identifying him as the subject of the
warrant was reasonable. Nothing in the record indicates that, even with the
information from the teletype, Norris’s conclusion was unreasonable. Thus, we
conclude that the district court properly granted summary judgment to Norris on
Michael’s claim of false arrest in violation of the Fourth Amendment.
As the magistrate judge noted, under Michael’s own version of the facts, he
did not comply with Norris’s multiple requests to exit his vehicle. At that point,
he was resisting arrest, an action which can constitute probable cause on its own.
Reese, 527 F.3d at 1272. Norris’s use of force to ensure Michael’s compliance
was not so excessive that every reasonable officer in his position would have
thought it unlawful. Jones, 121 F.3d at 1460. Michael’s injuries, aggravated by a
preexisting condition, do not transform Norris’s actions into the use of excessive
force. Rodriguez, 280 F.3d at 1353. Although law enforcement expert Sullivan
contended in his affidavit that Norris violated Michael’s constitutional rights, he
did not address Michael’s resistance to Norris and his repeated refusals to exit the
vehicle. Michael has not demonstrated that every reasonable officer in Norris’s
position would have concluded that his use of force was unlawful. Further,
although the district court concluded that no evidence showed that Norris
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intentionally inflicted Michael’s injuries, and Michael does not challenge the
district court’s finding to that effect on appeal, an officer’s underlying intent and
motivation are not controlling. Zivojinovich, 525 F.3d at 1072. In sum,
considering the totality of the circumstances, we conclude that the district court
properly found that Norris was entitled to qualified immunity on Michael’s
excessive force claim.
Regarding Michael and Cheryl’s state law claims, Norris made a reasonable
mistake in arresting Michael even though he was not the subject of the warrant and
Norris had probable cause to arrest Michael because he resisted arrest. As a
consequence, he was entitled to summary judgment on Michael’s false arrest claim
under Florida law. Further, because Michael’s battery claim arose from this arrest,
it did not give rise to an independent tort. Nor can Cheryl pursue a derivative
claim for loss of consortium in the absence of any of Michael’s claims. Finally,
we decline to consider Michael and Cheryl’s discovery claims because they raised
those claims for the first time in their reply brief. Accordingly, for the above-
stated reasons, we affirm the district court’s grant of summary judgment based on
qualified immunity.
AFFIRMED.
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