Susan Porter v. Ricky L. Jewell ( 2012 )


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  •                                                         [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    _____________________________
    No. 10-12521               FILED
    U.S. COURT OF APPEALS
    _____________________________
    ELEVENTH CIRCUIT
    D. C. Docket No. 1:09-cv-00899-TWT JAN 27, 2012
    JOHN LEY
    CLERK
    SUSAN PORTER,
    DAMINGA PORTER,
    Plaintiffs-Appellants,
    versus
    RICKY L. JEWELL,
    in his individual and
    official capacity as City
    of McDonough police officer,
    PRESTON DORSEY,
    in his individual and
    official capacity as City of McDonough police chief,
    Defendants-Appellees.
    _________________________________________
    Appeal from the United States District Court
    for the Northern District of Georgia
    _________________________________________
    (January 27, 2012)
    Before EDMONDSON, WILSON, and BLACK, Circuit Judges.
    PER CURIAM:
    Susan Porter,1 proceeding pro se, appeals the district court’s grant of
    summary judgment in favor of Officer Ricky Jewell, Chief Preston Dorsey, and the
    City of McDonough, Georgia (“City”)2 in her 42 U.S.C. § 1983 lawsuit. No
    reversible error has been shown; we affirm.
    Porter’s complaint arose from the following series of events. Porter’s
    brother told Officer Jewell, an officer in the City’s police force, that he was
    concerned about his niece’s well being because he suspected that Porter was living
    with a convicted child molester. Upon the brother’s request, Officer Jewell visited
    Porter’s apartment to do a “welfare check,” but the Officer left when no one
    answered the door.
    Later that day, after Porter called the police department, Officer Jewell and
    another officer returned to the apartment. Porter opened the door and denied that
    1
    Daminga Porter, Susan Porter’s minor daughter, was also a plaintiff in this case and appeals the
    district court’s order. Because Daminga’s appellate arguments are the same as her mother’s, we will
    not address them separately and our analysis of Porter’s claims applies with equal force to Daminga.
    2
    Although Porter did not name the City in her complaint, when an officer of the government is
    sued in his official capacity -- as in this case -- and “the government entity receives notice and an
    opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as
    a suit against the entity.” Kentucky v. Graham, 
    105 S. Ct. 3099
    , 3105 (1985). Because the district
    court treated the City as a party and granted summary judgment in the City’s favor, Porter is entitled
    to challenge that decision on appeal.
    2
    she was living with a man. Although she invited the officers to inspect the
    apartment, the officers did not enter. The parties dispute what happened next.
    According to Porter, she closed the door; and Officer Jewell began banging on and
    kicking the door and continued for several minutes. Porter was then unable to
    open the door after the officers left because the door’s deadbolt and doorframe
    were cracked. Porter and her daughter were confined in the apartment for one
    hour before the apartment complex’s maintenance worker arrived to repair the
    door. Porter reported the incident to the police department; but, after a brief
    investigation, Chief Dorsey concluded that the matter did not warrant an internal
    affairs investigation.
    Porter filed a civil rights complaint against Officer Jewell and Chief Dorsey,
    in their individual and official capacities, pursuant to section 1983. She alleged
    that when Officer Jewell damaged her door, he interfered with her possessory
    interest in her apartment and restrained her movement, in violation of the Fourth
    Amendment.3 She also contended that Chief Dorsey, who was Officer Jewell’s
    supervisor, was liable for Officer Jewell’s conduct because he failed to provide
    proper training and discipline. Because Porter sued both officers in their official
    3
    Porter also alleged a Fourteenth Amendment due process violation. Because she does not raise
    that claim on appeal, she has abandoned it. See Irwin v. Hawk, 
    40 F.3d 347
    , 347 n.1 (11th Cir.
    1994).
    3
    capacities, the district court construed the complaint as asserting a municipal
    liability claim against the City. The officers and the City filed a motion for
    summary judgment which the district court granted.
    We review a district court’s grant of summary judgment de novo, and we
    view the evidence and all reasonable factual inferences in the light most favorable
    to the nonmoving party. Skop v. City of Atlanta, 
    485 F.3d 1130
    , 1136 (11th Cir.
    2007). “Summary judgment is appropriate if the evidence establishes ‘no genuine
    issue as to any material fact and that the moving party is entitled to judgment as a
    matter of law.’” McCormick v. City of Fort Lauderdale, 
    333 F.3d 1234
    , 1243
    (11th Cir. 2003). We construe liberally pro se pleadings. Tannenbaum v. United
    States, 
    148 F.3d 1262
    , 1263 (11th Cir. 1998).
    Qualified immunity shields a government official sued in his individual
    capacity from liability for section 1983 claims if the official’s conduct did not
    “violate clearly established statutory or constitutional rights of which a reasonable
    person would have known.” Jordan v. Doe, 
    38 F.3d 1559
    , 1565 (11th Cir. 1994).
    Once an officer establishes that “he was acting within the scope of his
    discretionary authority when the allegedly wrongful acts occurred,” the burden
    shifts to the plaintiff to show that (1) the facts, as alleged and viewed in the light
    4
    most favorable to the plaintiff, establish a constitutional violation and (2) the
    constitutional right violated clearly was already established. 
    Id. The Fourth
    Amendment protects people “against unreasonable searches and
    seizures.” U.S. Const. amend. IV. A “seizure” of property under the Fourth
    Amendment “occurs when ‘there is some meaningful interference with an
    individual’s possessory interests in that property.’” Soldal v. Cook Cnty., Ill., 
    113 S. Ct. 538
    , 543 (1992).
    The Constitution, however, “is not concerned” with de minimis violations.
    Ingraham v. Wright, 
    97 S. Ct. 1401
    , 1414 (1977); see also United States v.
    Hernandez, 
    418 F.3d 1206
    , 1212 n.7 (11th Cir. 2005) (stating that “[o]f trifles the
    law does not concern itself: De minimis non curat lex”); United States v. Purcell,
    
    236 F.3d 1274
    , 1279 (11th Cir. 2001) (concluding that a de minimis delay during a
    traffic stop did not violate the Fourth Amendment); Nolin v. Isbell, 
    207 F.3d 1253
    ,
    1257 (11th Cir. 2000) (stating that “the application of de minimis force, without
    more, will not support a claim for excessive force in violation of the Fourth
    Amendment”). Although we have not addressed the amount of property damage
    required to constitute a “seizure” of that property under the Fourth Amendment,
    we are convinced -- based on our decisions in these other contexts -- that a de
    5
    minimis amount of damage does not rise to the level of a Fourth Amendment
    violation.
    Viewing the facts in the light most favorable to Porter, Officer Jewell
    banged on and kicked her apartment door several times unprovoked, cracking the
    doorframe and damaging the deadbolt. Officer Jewell did not, however, kick the
    door down or permanently destroy the door. Thus, at most, the damage was only a
    temporary deprivation of Porter’s possessory interests. Cf. United States v.
    Jacobsen, 
    104 S. Ct. 1652
    , 1662 (1984) (concluding that a field test of suspected
    drugs “did affect respondents’ possessory interests protected by the [Fourth]
    Amendment, since by destroying a quantity of the powder it converted what had
    been only a temporary deprivation of possessory interests into a permanent one.”).
    Moreover, because this damage was relatively minor and was able to be repaired
    within an hour, we agree with the district court’s conclusion that the damage was
    de minimis. Thus, there was no “meaningful interference” with Porter’s
    possessory interests and no “seizure” of property within the meaning of the Fourth
    Amendment. See 
    Soldal, 113 S. Ct. at 543
    .
    6
    Officer Jewell’s conduct also did not result in a “seizure” of Porter and her
    daughter under the Fourth Amendment.4 An officer “seizes” a person for purposes
    of the Fourth Amendment when he “restrains the freedom of a person to walk
    away.” Brower v. Cnty. of Inyo, 
    109 S. Ct. 1378
    , 1380 (1989). “Violation of the
    Fourth Amendment requires an intentional acquisition of physical control.” 
    Id. at 1381.
    Thus, a Fourth Amendment seizure occurs “only when there is a
    governmental termination of freedom of movement through means intentionally
    applied.” 
    Id. (emphasis in
    original).
    The evidence, viewed in the light most favorable to Porter, indicates that
    Officer Jewell damaged Porter’s door in such a way that Porter and her daughter
    were unable to exit. Nothing in the record evidences that Officer Jewell intended
    to trap Porter inside. In fact, one would expect that banging and kicking a door
    would result in the door being forced open, not forced closed. Because Officer
    Jewell did not restrain Porter or her daughter “through means intentionally
    applied,” there was no “seizure” of persons under the Fourth Amendment.
    Because Porter failed to establish that Officer Jewell’s conduct resulted in a
    constitutional violation, Officer Jewell was entitled to qualified immunity. See
    4
    Although it is not clear whether this claim was addressed below, we may affirm a grant of
    summary judgment for any reason supported by the record. See Bircoll v. Miami-Dade County, 
    480 F.3d 1072
    , 1088 n.21 (11th Cir. 2007).
    7
    
    Jordan, 38 F.3d at 1565
    . And Porter’s claims against Chief Dorsey and the City --
    based on their liability for Officer Jewell’s alleged constitutional violation -- also
    must fail.
    AFFIRMED.
    8