USCA11 Case: 19-14586 Date Filed: 01/21/2021 Page: 1 of 11
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-14586
Non-Argument Calendar
________________________
D.C. Docket No. 1:18-cv-20481-RNS
JAMIE RASHAD BROWN,
Plaintiff - Appellant,
versus
TI’ANDRE BELLINGER,
individually,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 21, 2021)
Before NEWSOM, LUCK, and ANDERSON, Circuit Judges.
PER CURIAM:
Jamie Rashad Brown filed a two-count complaint alleging that during the
course of a pat-down search, a police officer used excessive force in violation of
USCA11 Case: 19-14586 Date Filed: 01/21/2021 Page: 2 of 11
the Fourth Amendment and intentionally inflicted emotional distress on him. The
district court granted the officer’s motion for summary judgment on both counts.
On appeal, Brown asserts with respect to his excessive-force claim that fact issues
preclude summary judgment, that the district court improperly made credibility
determinations against him, and that, in any event, the officer is not entitled to
qualified immunity. Brown also argues that the district court improperly weighed
the evidence on his intentional-infliction-of-emotional-distress claim. For the
reasons that follow, we affirm.
I
This case arises from an incident involving Brown and Ti’Andre Bellinger, a
city of Miami police officer. According to Brown, he was working late at night at
a small bodega in Miami when he witnessed a dispute among three women, one of
whom called the police. By the time Bellinger arrived, none of the three women
remained at the scene, and Bellinger ordered Brown to “come here.” Bellinger
asked Brown whether he had anything in his pockets, and Brown replied “no.”
Bellinger proceeded to pat-down search Brown, pull out Brown’s wallet, and,
shortly after, retrieve marijuana from Brown. According to Brown, after this initial
search concluded, Bellinger crept up to him from behind, caressed his chest, and
“hugged [him] like a female.” Bellinger “went inside of Brown’s boxer briefs”
2
USCA11 Case: 19-14586 Date Filed: 01/21/2021 Page: 3 of 11
and made contact with Brown’s penis and testicles. The search of Brown’s boxer
briefs lasted two minutes. Bellinger stopped when Brown objected.
Brown’s amended complaint alleged a violation of his federal civil rights
(Count 1) and intentional infliction of emotional distress (Count 2). Officer
Bellinger moved for summary judgment on both counts, arguing (1) that he was
entitled to qualified immunity on Brown’s civil-rights claim and (2) that Brown
had failed to meet his burden to establish a claim for intentional infliction of
emotional distress. In response, Brown attached his own affidavit that had been
created after his deposition. Bellinger’s reply argued that portions of Brown’s
newly filed affidavit contradicted his deposition testimony.
The district court granted Bellinger’s motion for summary judgment.
Construing Count 1 as an excessive-force claim, the district court concluded that
Bellinger’s use of force was de minimis, and that, even if the court were to decide
that Bellinger’s search was unconstitutionally unreasonable, Brown had failed to
show that Bellinger’s conduct violated clearly established law. With respect to
Count 2, the district court held that Brown failed to produce evidence that
Bellinger’s conduct exceeded “all possible bounds of decency and is atrocious, and
3
USCA11 Case: 19-14586 Date Filed: 01/21/2021 Page: 4 of 11
utterly intolerable in a civilized community,” and that Bellinger’s conduct caused
severe emotional distress. Brown now appeals.1
III
Brown appeals the district court’s order with respect to both his excessive-
force claim (Count 1) and his intentional-infliction-of-emotional-distress claim
(Count 2). We will address each in turn.
A
Brown challenges the district court’s grant of summary judgment for
Bellinger on his excessive-force claim on three separate grounds. First, he argues
that genuine issues of material fact preclude summary judgment. Second, Brown
contends that the district court impermissibly made credibility determinations by
adopting Bellinger’s—not Brown’s—version of the facts. Third, Brown insists
that Bellinger is not entitled to qualified immunity because (1) the amount of force
used by Bellinger was objectively unreasonable and (2) either that a broad, clearly
established principle controls the facts here or that Bellinger’s conduct so
obviously violates the Constitution that prior case law is unnecessary.
1
We review a district court’s order granting summary judgment de novo, viewing all the
evidence and drawing all reasonable inferences in favor of the non-moving party, Brown.
Vessels v. Atlanta Indep. Sch. Sys.,
408 F.3d 763, 767 (11th Cir. 2005). Summary judgment is
appropriate when the record demonstrates 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).
4
USCA11 Case: 19-14586 Date Filed: 01/21/2021 Page: 5 of 11
In response, Bellinger argues that, contrary to Brown’s contentions, no
genuine issues of material fact exist, and the district court did not make improper
credibility findings. Bellinger further argues that his use of force was de minimis
and objectively reasonable, and that a constitutional violation did not occur. He
contends that even if a constitutional violation did occur, Brown failed to meet his
burden to prove that the constitutional right at issue was clearly established.
A court “can only grant summary judgment if everything in the record
demonstrates that no genuine issue of material fact exists.” Strickland v. Norfolk S.
Ry. Co.,
692 F.3d 1151, 1154 (11th Cir. 2012) (quotation marks omitted). “A fact
is ‘material’ if it ‘might affect the outcome of the suit under the governing law.’”
BBX Capital v. FDIC,
956 F.3d 1304, 1314 (11th Cir. 2020) (quoting Anderson v.
Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). Further, “[c]redibility
determinations, the weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a judge, whether he is
ruling on a motion for summary judgment or for a directed verdict.” Anderson,
477 U.S. at 255.
Here, the possible issues of fact that Brown has identified are either
immaterial, unsupported by the record, or undisputed. That Bellinger was
responding to a call and not “just cruising around” is immaterial. That “Bellinger
continued to stalk [Brown] even though he had nothing to do with the reason for
5
USCA11 Case: 19-14586 Date Filed: 01/21/2021 Page: 6 of 11
the call and was simply standing in front of a store where he was working” is
unsupported by the record. Further, we accept as true in this summary judgment
posture that Bellinger crept behind Brown, caressed Brown’s chest, hugged him
“like a female,” stuck his gloved hand into Brown’s underwear, and then touched
Brown’s penis and testicles. The parties only dispute whether Bellinger
“manipulated” 2 (rather than merely touched) Brown’s penis and testicles and
whether the contact with the penis and testicles lasted ninety seconds or two
minutes. These distinctions are immaterial for the purpose of summary judgment.
Nor did the district court make improper credibility findings. The district
court noted the number of “contradictory and misleading claims found throughout
the record.” But “contradictory or misleading claims” simply refers to the fact that
some allegations in the complaint contradict Brown’s deposition testimony. The
district court expressly indicated that it took the facts in the light most favorable to
Brown; in doing so, the district court relied on Brown’s statement of material facts
and his own deposition.
With respect to qualified immunity, “an officer asserting a qualified-
immunity defense bears the initial burden of showing that he was acting within his
discretionary authority.” Piazza v. Jefferson Cnty.,
923 F.3d 947, 951 (11th Cir.
2019) (quotation marks omitted). Once an officer makes this showing—and here,
2
At various points, Brown also described Bellinger’s conduct as “fondling” and “stroking.”
6
USCA11 Case: 19-14586 Date Filed: 01/21/2021 Page: 7 of 11
it is unchallenged—the burden shifts to the plaintiff to show that “(1) the officer
violated a constitutional right and (2) the right was clearly established at the time
of the alleged violation.” Piazza, 923 F. 3d at 951; see also Cozzi v. City of
Birmingham,
892 F.3d 1288, 1293 (11th Cir. 2018). “We may decide these issues
in either order, but, to survive a qualified-immunity defense, [the plaintiff] must
satisfy both showings.” Jones v. Fransen,
857 F.3d 843, 851 (11th Cir. 2017).
Under the first step of the analysis, to determine whether an officer violated
a constitutional right, we evaluate the reasonableness of the force used under an
objective standard and ask whether an officer’s actions were reasonable “in light of
the facts and circumstances confronting [the police officer], without regard to his
underlying intent or motivation.” Kesinger v. Herrington,
381 F.3d 1243, 1248
(11th Cir. 2004); see also Lee v. Ferraro,
284 F.3d 1188, 1197–98 (11th Cir.
2002). This Court has “established the principle that the application 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). Thus,
“a minimal amount of force . . . will not defeat an officer’s qualified immunity in
an excessive force case.”
Id. at 1258.
Here, the district court correctly determined that Bellinger did not violate
Brown’s constitutional rights. First, it was not per se unreasonable for Bellinger to
search Brown’s penis-and-testicles area. Both the Supreme Court and this Court
7
USCA11 Case: 19-14586 Date Filed: 01/21/2021 Page: 8 of 11
have described pat-down searches as involving “arms and armpits, waistline and
back, the groin and area about the testicles, and entire surface of the legs down to
the feet.” Terry v. Ohio,
392 U.S. 1, 17 n.13 (1968) (citation omitted) (emphasis
added); see also United States v. Blake,
888 F.2d 795, 801 (11th Cir. 1989).
Second, Bellinger did not use more than de minimis force. At most, Officer
Bellinger “manipulated” or “touched” Brown’s penis and testicles for two minutes,
and although this certainly seems to us unnecessarily long, no lasting physical
injury occurred. We have found far more aggressive and injurious uses of force to
be de minimis and reasonable. See, e.g., Durruthy v. Pastor,
351 F.3d 1080, 1094
(11th Cir. 2003) (“Here, even if the force applied by [the officer] in effecting the
arrest—forcing Durruthy down to the ground and placing him in handcuffs—was
unnecessary, plainly it was not unlawful. The amount of force used was de
minim[i]s.”); Nolin, 207 F.3d at 1254–58 (where a police officer saw two boys
fighting, it was de minimis force to grab one of the boys, a seventeen-year-old,
from behind by the shoulder and wrist, throw him against a van three or four feet
away, knee him in the back, push his head against the side of the van, search his
groin area in an uncomfortable manner, and handcuff him); Gold v. City of Miami,
121 F.3d 1442, 1446 (11th Cir. 1997) (officer’s applying handcuffs tightly,
resulting in skin abrasion, was a de minimis use of force); Jones v. City of Dothan,
121 F.3d 1456, 1460 (11th Cir. 1997) (finding the force used to be minor where
8
USCA11 Case: 19-14586 Date Filed: 01/21/2021 Page: 9 of 11
officers slammed the plaintiff against a wall, kicked his legs apart, required him to
put his arms above his head, and pulled his wallet from his pants pocket). Because
Brown failed to satisfy the first step of the qualified-immunity analysis, as is his
burden, Officer Bellinger is entitled to qualified immunity on Brown’s excessive
force claim.3
B
On appeal, Brown also argues that the district court impermissibly weighed
the evidence on his intentional-infliction-of-emotional-distress claim. Specifically,
he contends that the district court ignored Brown’s testimony, failed to disclose
important context regarding Bellinger’s psychiatrist visits, and improperly
concluded that Brown had not suffered greatly.
Under Florida law, to bring an intentional-infliction-of-emotional-distress
claim, a plaintiff must show that—
(1) [t]he wrongdoer’s conduct was intentional or reckless, that is, he
intended his behavior when he knew or should have known that
emotional distress would likely result;
(2) the conduct was outrageous, that is, as to go beyond all bounds of
decency, and to be regarded as odious and utterly intolerable in a
civilized community;
(3) the conduct caused emotional distress; and
3
Brown also argues that the sham-affidavit rule does not apply. We need not address the
propriety of the sham-affidavit rule in order to determine that qualified immunity applies. Nor
does Brown’s post-deposition affidavit create a genuine issue of material fact.
9
USCA11 Case: 19-14586 Date Filed: 01/21/2021 Page: 10 of 11
(4) the emotional distress was severe.
Deauville Hotel Mgmt., LLC v. Ward,
219 So. 3d 949, 954–55 (Fla. Dist. Ct. App.
2017).
For our purposes, it is sufficient that the district court properly concluded
that Bellinger’s conduct did not cause severe emotional distress. “[S]evere
emotional distress means emotional distress of such a substantial quality or
enduring quality[] that no reasonable person in a civilized society should be
expected to endure it.” Kim v. Jung Hyun Chang,
249 So. 3d 1300, 1305 (Fla.
Dist. Ct. App. 2018) (quotation marks omitted). Brown urges us to consider his
testimony that he saw a psychiatrist every six months “because of depression and
anger control, and to get renewal of Celexa[.]” These relatively infrequent
psychiatrist visits do not by themselves provide evidence of distress that is either
substantial or enduring, particularly when it is unclear whether Brown’s depression
and issues with anger control arose from the incident with Bellinger or from
another source.4 See id. at 1306 (“[C]ourts that have tackled this issue have
recognized that a high standard for determining what kind of emotional distress is
remediable in a claim for intentional infliction is necessary to prevent the tort from
becoming a venue for litigation over every emotional injury.”). Accordingly, we
4
During his deposition, Brown indicated that he was already taking Celexa, a depression
medication, at the time of the incident with Bellinger.
10
USCA11 Case: 19-14586 Date Filed: 01/21/2021 Page: 11 of 11
conclude that the district court properly granted summary judgment for Bellinger
on Brown’s intentional-infliction-of-emotional-distress claim.
IV
For the foregoing reasons, we affirm the district court’s grant of summary
judgment for Officer Bellinger on Brown’s excessive-force and intentional-
infliction-of-emotional-distress claims.5
AFFIRMED.
5
Brown did not bring either a post-arrest strip-search claim or a substantive due process claim.
See, e.g., Evans v. Stephens,
407 F.3d 1272, 1279 (11th Cir. 2005); Doe v. City of Miami
Gardens,
389 F. Supp. 3d 1118, 1133 (S.D. Fla. 2019). We do not opine on the merits of either
of those claims under these facts.
11
