J.B. v. Sheriff Larry Amerson , 519 F. App'x 613 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-14546
Non-Argument Calendar
________________________
D. C. Docket No. 1:11-cv-01182-RBP-HGD
J.B.,
A minor, who sues by and through his
Mother and next friend, Stacy Brown,
Plaintiff-Appellant,
versus
SHERIFF LARRY AMERSON,
in his official and individual capacities,
DEPUTY WARD,
in his official and individual capacities,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(May 28, 2013)
Before DUBINA, Chief Judge, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
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Plaintiff-Appellant J.B., by and through his mother and next friend, Stacy
Brown (“Stacy”), appeals the district court’s order granting summary judgment in
favor of Defendant-Appellee Sheriff Larry Amerson (“Amerson”) on J.B.’s Fourth
Amendment excessive force claim. After reviewing the record and reading the
parties’ briefs, we affirm.
I.
Facts
In February 2011, J.B., then 14 years old, was suspended from an alternative
school program. Stacy elected to send her son to a Calhoun County Jail program
for suspended students which allowed J.B. to perform community service in lieu of
being sent to the Department of Youth Services. After Stacy consented to J.B.’s
participation in the program and dropped him off for the day at the jail, J.B.
changed into a jail uniform and was given an assignment to clean walls with a
toothbrush. Later in the day, jail personnel took J.B. and another program
participant on a tour of the jail. J.B. alleges that during and after the tour, officers
threatened and intimidated him, including threatening to lock him in a room alone
with an inmate. Amerson claims to be without knowledge of these events, and
former defendant Corrections Officer Wendell Ward (“Ward”) denies these
allegations. According to several of Amerson’s officers, after J.B.’s cleaning
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assignment, J.B. disobeyed their instructions, aggressively resisted them, cursed
them, threatened to fight them, threatened to sue them, and struck an officer on the
arm. J.B. and Stacy allege that J.B. was scared of his environment and wanted to
call Stacy to come pick him up from the program.
According to Amerson, as a result of J.B.’s demeanor, his officers had to
loosely handcuff and later shackle J.B. to a bench in a room used for
fingerprinting. After an officer informed Amerson about their dealings with J.B.,
Amerson came in to talk with J.B. in an attempt to reason with him. The events of
Amerson’s interaction with J.B. are recorded on video, but there is no audio. The
video shows Amerson sitting down next to J.B, who does not resist Amerson. At
times, Amerson leans toward J.B. or put his arm around him. As J.B.
acknowledges, Amerson told J.B. that Amerson was there to help him. But
suddenly, after J.B. turned his head and body away from Amerson, Amerson
grabbed J.B.’s shoulder, quickly turned J.B. back toward Amerson, and then stood
over J.B. applying a choke hold for about 19–20 seconds.
Amerson claims that when J.B. turned away from him, he heard J.B.
“hocking,”1 as though he were about to spit at Amerson. Amerson explains that in
1
The verb “hock” is not defined in dictionaries as Amerson uses the word. Amerson’s
use of “hock” is slang, and we understand him to mean that J.B. made the sound that a person
would make when collecting phlegm in his throat before spitting it out. The word “hock”
imitates the sound a person makes when “hocking.”
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order to prevent J.B. from spitting, Amerson stood up, turned J.B. around, grabbed
J.B. by the jaw and neck, and told J.B. that he would not be spit upon. J.B. denies
that he “hocked” or tried to spit on Amerson and complains that Amerson choked
him for no reason, inflicting pain and causing temporary shortness of breath and
bruising.
After releasing J.B. from the choke hold, Amerson continued to try to
counsel J.B. but was unsuccessful. At some point, Amerson momentarily grabbed
J.B. again by the shoulders as J.B. resisted him. 2 Officers removed J.B.’s
handcuffs and moved him to another room, where J.B. used furniture to crack a
window, overturned a table, and ripped wiring from a wall. J.B. explains that he
believed the officers would place inmates in the room with him. Amerson charged
J.B. with criminal mischief and harassment. J.B. was transferred to Coosa Valley
Youth Services where he complained about his treatment at the jail, and Youth
2
The second amended complaint alleges vaguely that after grabbing J.B. by the neck,
Amerson “assaulted J.B. a second time.” [R. 21 at 5–6.] Likewise, J.B.’s reply brief asserts
that Amerson “assaulted J.B. twice without justification.” Reply Br. at 4 (emphasis added). Yet
J.B.’s response to the summary judgment motion, [See R. 73 at 5–6], and J.B.’s initial brief to
this court, see Appellant’s Br. at 6–7, describe only the choking incident in their statements of
facts and neglect to discuss the second application of excessive force. In his deposition, counsel
asked J.B., “Do you remember if [Amerson] like grabbed you or strongly handled you in any
other way besides the choking?” J.B. responded that he could not remember. [R. 75-2 at 16.]
We have reviewed the video of the second alleged application of force, [see R. 75 Exh.
A], and we conclude that Amerson’s momentary holding of J.B. by J.B.’s shoulders was de
minimis and not actionable as a matter of law. See Scott v. Harris, 550 U.S. 372, 378–81, 127
S. Ct. 1769, 1775–76 (2007) (holding that a court at summary judgment can and should view
the facts in the light depicted by a video where there is no contention that a video fails to depict
what actually happened).
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Services officers photographed J.B.’s injury (bruising on his neck). 3 J.B. never
received medical treatment for the physical injuries he claims to have suffered.
J.B. also claims to have suffered emotional and psychological trauma related
to the incident, but he has refused therapy. Since the incidents at the jail, Stacy
reports that J.B., who was diagnosed with ADHD and epilepsy before this incident,
has been prescribed a new medication, Focalin. Stacy also testified that J.B.’s
dosage of another medication, Seroquel, has been increased. Yet there is no
evidence in the record explaining the purpose of either medicine or how J.B.’s
need for the prescriptions is causally related to the events at issue in this case.
Procedural History
J.B. sued Amerson and Ward in federal court alleging several violations of
his constitutional and statutory rights. Eventually, all claims were dismissed with
prejudice except for J.B.’s 42 U.S.C. § 1983 excessive force claim against
Amerson. J.B. maintained that the choking incident was an unreasonable and
disproportionate use of force in light of J.B.’s young age, small stature, and
subdued status at the time that Amerson grabbed him. After briefing and oral
argument, which included the court’s review of the relevant portions of the video
and a photograph of J.B.’s bruise, the district court granted Amerson’s motion for
3
The district court found that “[e]ven a slight bruise cannot be truly perceived from an
examination of the photograph.” [R. 87 at 13.]
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summary judgment, concluding that Amerson did not, as a matter of law, use
excessive force in violation of J.B.’s constitutional rights because Amerson used de
minimis force, as evidenced by J.B.’s de minimis injuries. The court further found
that even if a question of fact remained as to whether Amerson used excessive
force, J.B. still could not defeat Amerson’s defense of qualified immunity because
J.B. failed to show that the law was clearly established that Amerson’s use of force
was excessive under the circumstances. J.B. brought this timely appeal.
II.
We review de novo the district court’s grant of summary judgment, drawing
all inferences and construing the evidence in the light most favorable to the non-
moving party. Croom v. Balkwill, 645 F.3d 1240, 1245 (11th Cir. 2011).4
Summary judgment is appropriate “if the movant shows that 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 may affirm the grant of summary judgment on the
basis of any ground supported in the record. Lucas v. W.W. Grainger, Inc., 257
F.3d 1249, 1256 (11th Cir. 2001).
4
J.B. argues in his initial brief that the district court’s memorandum opinion improperly
presumes and emphasizes Anderson’s good will toward troubled youths in Calhoun County.
Although the opinion does suggest that Amerson’s program for suspended students like J.B. was
a virtuous undertaking, that Amerson intended only to help, not hurt J.B., and that J.B. didn’t
care about Amerson’s gestures of kindness, J.B.’s allegation of error is immaterial because we
are reviewing his case de novo.
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III.
After reviewing the parties’ briefs, the district court’s memorandum opinion,
the transcript of the district court’s hearing on the motion for summary judgment,
and the most relevant evidence, i.e., the video, we hold that Amerson’s conduct
was objectively reasonable under the circumstances and that he is therefore entitled
to qualified immunity.
Qualified immunity
Law enforcement officers like Amerson who act in their official capacities
and within their discretionary authority enjoy qualified immunity from suit and are
not liable for civil damages “insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Croom, 645 F.3d at 1245 (internal quotation marks omitted). The
Supreme Court has emphasized repeatedly “the importance of resolving immunity
questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S.
224, 227, 112 S. Ct. 534, 536 (1991) (per curiam). To defeat Amerson’s summary
judgment motion and qualified immunity defense, J.B. must show that, (1)
Anderson’s conduct violated his constitutional right to be free from excessive
force, and (2) his right was clearly established. See Croom, 645 F.3d at 1246.
Where, as here, a plaintiff claims that a law enforcement officer has used excessive
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force in the course of arresting or otherwise seizing him, we analyze his claim
under the Fourth Amendment’s “objective reasonableness” standard. Graham v.
Connor, 490 U.S. 386, 388, 109 S. Ct. 1865, 1867–68 (1989).
De minimis force
A law enforcement officer’s application of de minimis force to a lawfully
arrested person is objectively reasonable. The district court concluded that J.B.
could not prove a constitutional violation because J.B.’s de minimis injuries
necessarily indicated a de minimis application of force. [See. R. 87 at 10 (“The
undisputed evidence in this case establishes that the purported injury to the
plaintiff was de minimis, if existent, and thus, that any force was de minimis and
not excessive.” (emphasis added)); id. at 16 (“This court concludes that there was
no Constitutional violation because there was no excessive force; there was only de
minimis physical or mental injury, if any injury.”).] While we agree that there is
scant evidence of J.B.’s physical or emotional injuries, we disagree with the district
court that J.B.’s de minimis injury necessarily demonstrates that Amerson applied
de minimis force.5
5
J.B. similarly asserts that “[w]hether J.B.’s injuries were de minim[i]s is not
dispositive.” Appellant’s Br. at 27. In support of his position, J.B. primarily discusses two
Supreme Court cases on excessive force in the Eighth Amendment context. J.B. relies on these
cases to demonstrate that the relatively minor nature of a plaintiff’s injuries does not require a
court to conclude that a defendant has not used excessive force. We agree with J.B. that de
minimis injuries are not necessarily dispositive of an excessive force claim, but we arrive at that
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It is well-settled that the use of de minimis force, “without more, will not
support a claim for excessive force in violation of the Fourth Amendment.” Nolin
v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000). But see Reese v. Herbert, 527 F.3d
1253, 1272 (11th Cir. 2008) (explaining that de minimis force is actionable where a
defendant is not legally entitled to seize the plaintiff). 6 Numerous cases from this
court provide examples of what sort of force is, as a matter of law, de minimis, and
therefore, lawful. See, e.g., Croom, 645 F.3d at 1252–53 (11th Cir. 2011) (officer
forced an unarmed, physically weak, elderly woman to the ground and held her
there with a foot or knee on her back for ten minutes); Nolin, 207 F.3d at 1258,
1258 n.4 (officer shoved a 17-year-old male against a van, pushed a knee into his
back, pushed his head against the van, searched his groin area in an uncomfortable
manner, and handcuffed him); Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559–
60 (11th Cir. 1993) (officer unnecessarily pushed an already-handcuffed adult male
into a wall). The district court observed that we have often discussed the minimal
nature of the plaintiff’s injuries in conjunction with a defendant’s minimal use of
conclusion differently. The Eighth Amendment excessive force cases cited by J.B. do not
control here. See Graham, 490 U.S. at 394, 109 S. Ct. at 1870–71 (distinguishing between
excessive force claims which arise under the Fourth Amendment’s prohibition against
unreasonable seizures and the Eighth Amendment’s ban on cruel and unusual punishments, and
requiring that “[t]he validity of [a plaintiff’s] claim . . . be judged by reference to the specific
constitutional standard which governs that right”).
6
J.B. has not alleged that he was unlawfully seized—only that he was unreasonably
subjected to excessive force.
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force. See, e.g., Nolin, 207 F.3d at 1258 n.4. (noting that the defendant’s actions
caused only “minor bruising which quickly disappeared without treatment” and
reasoning that “a minimal amount of force and injury . . .will not defeat an
officer’s qualified immunity”); Gold v. City of Miami, 121 F.3d 1442, 1446 (11th
Cir. 1997) (per curiam) (finding defendant’s entitlement to qualified immunity and
reasoning that “[t]he minor nature of [plaintiff’s] injury reflects that minimal force
was used”); Jones v. City of Dothan, Ala., 121 F.3d 1456, 1460 (11th Cir. 1997)
(finding defendant’s entitlement to qualified immunity and reasoning that “the
actual force used and the injury inflicted were both minor in nature”).
Yet the de minimis nature of a plaintiff’s injury does not foreclose the
possibility of his entitlement to relief. See, e.g., Slicker v. Jackson, 215 F.3d 1225,
1231–32 (11th Cir. 2000) (“[A] § 1983 plaintiff alleging excessive use of force is
entitled to nominal damages even if he fails to present evidence of compensable
injury.”) Similarly, the de minimis nature of an injury does not require the legal
conclusion that a defendant used non-actionable, de minimis force. In Lee v.
Ferraro, 284 F.3d 1188 (11th Cir. 2002), we reasoned as follows:
that [the plaintiff] did not suffer greater injury to her head as a result
of it being slammed against the trunk of a car does not alone render
the force used de minimis. . . . [O]bjectively unreasonable force does
not become reasonable simply because the fortuity of the
circumstances protected the plaintiff from suffering more severe
physical harm.
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Id. at 1200. Following the same logic, the fact that J.B. did not need or obtain
medical or psychological treatment after Amerson applied a choke hold does not
mean that Amerson applied de minimis force as a matter of law.7 Consequently,
we reject the district court’s decision to grant summary judgment on the basis of de
minimis force. However, this does not end our inquiry of whether J.B. has shown
that Amerson violated his right to be free from excessive force.
Objectively reasonable force
The objectively reasonable application of force is permissible under the
Fourth Amendment. The application of Graham’s objective reasonableness
standard “requires careful attention to the facts and circumstances of each
particular case.” Graham, 490 U.S. at 396, 109 S. Ct. at 1872. We must judge the
reasonableness of an officer’s use of force from the perspective of a reasonable
officer engaged in the incident, rather than from the perspective of hindsight,
understanding that officers often must make “split-second judgments” in “tense,
uncertain, and rapidly evolving” situations. Id. at 396–97, 109 S. Ct. at 1872.
7
It is telling that the district court was unwilling to conclude, based on its viewing of the
choke hold video, that Amerson applied de minimis force as a matter of law. See Myers v.
Bowman, ___ F.3d ___, 2013 WL 1442055 at *6 (11th Cir. 2013) (citing Scott, 550 U.S. at 381
n.8, 127 S. Ct. at 1776 n.8 (2007) for the proposition that a video can be used to establish that an
officer’s use of force was de minimis and lawful). Instead of concluding that the choke hold
itself constituted de minimis force, however, the district court focused on J.B.’s weak evidence of
actual injury to reach its conclusion on de minimis force.
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Because we apply an objective standard, we do not consider an officer’s
“underlying intent or motivation,” i.e., whether his intentions are evil or good. Id.
at 397, 109 S. Ct. at 1872.
“Graham dictates unambiguously that the force used . . . must be reasonably
proportionate to the need for that force, which is measured by the severity of the
crime, the danger to the officer, and the risk of flight.” Lee, 284 F.3d at 1198.
Although it is necessary and reasonable for an officer to apply force in order to
effectuate a lawful arrest, it may or may not be reasonable for an officer to apply
force upon a person who is already arrested and secured in handcuffs. It just
depends on the relevant facts and circumstances. Compare id. (denying qualified
immunity for officer who, after subduing and handcuffing a compliant plaintiff, led
her to the back of her car and slammed her head against the trunk), with
Zivojinovich v. Barner, 525 F.3d 1059, 1073 (11th Cir. 2008) (per curiam)
(upholding qualified immunity for officers who tased an already arrested and
handcuffed plaintiff because one officer reasonably believed that the plaintiff
intentionally sprayed blood at the officers from his broken nose when he spoke).
J.B. asserts that Amerson’s application of force was unreasonable under the
circumstances because, at the moment that Amerson grabbed J.B., J.B. posed no
obvious threat to Amerson or others. But when we consider the totality of the
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circumstances, i.e., J.B.’s undisputed lack of respect for the jail officers, his threats
to them, and his demonstrated willingness to lash out at the them, we can safely
say that it was reasonable for Amerson to believe that J.B. turned away and
“hocked” with the intent to spit at Amerson. See Post, 7 F.3d at 1559 (explaining
that we judge the reasonableness of force from the perspective of a reasonable
officer on the scene). Furthermore, the nature and duration of the force that
Amerson applied to J.B. (a 19–20 second choke hold) was not disproportionate to
the perceived need for force, and as the district court thoroughly explained in its
analysis, the injury inflicted upon J.B. was minimal. See Lee, 284 F.3d at 1198(advising that we consider the following factors indicating reasonableness: the
need for force, the proportionality of the force applied in relation to the need, and
the extent of any injuries inflicted).
J.B. contends that the video contradicts Amerson’s testimony about his
belief that J.B. was going to spit at him, and thus, a genuine dispute of material fact
remains, precluding summary judgment. Although we must view the facts in the
light most favorable to J.B., we must also consider Amerson’s conduct from the
perspective of a reasonable officer at the scene. See Zivojinovich, 525 F.3d at
1073. If J.B. had not been belligerent prior to meeting Amerson, this would be a
different case, and we would be inclined to agree with J.B; but unfortunately for
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J.B., J.B.’s behavior at the jail leads us to view Amerson’s application of the choke
hold as an appropriate precaution against being spit upon.
Accordingly, we hold that Amerson’s conduct was objectively reasonable
under these circumstances, and therefore, J.B. suffered no constitutional violation.
Because we conclude that there is no constitutional violation on this record, we
need not discuss Amerson’s contention that there was no clearly established law
placing him on notice that his actions were unconstitutional.
IV.
Because J.B. fails to show that Amerson’s conduct was objectively
unreasonable under the circumstances, we affirm the district court’s grant of
summary judgment based on qualified immunity in favor of Amerson.
AFFIRMED.
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