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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13297
Non-Argument Calendar
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D.C. Docket No. 6:09-cv-01737-JA-DAB
DARRELL L. JACKSON,
Plaintiff-Appellant,
versus
ERIC L. CAPRAUN,
CORPORAL VIDLER,
KEVIN BEARY,
OFFICER JOHN DOE,
both capacities,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Florida
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(August 15, 2013)
Before CARNES, Chief Judge, HULL and JORDAN, Circuit Judges.
PER CURIAM:
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Darrell Jackson, proceeding pro se, appeals the district court’s dismissal of
his third amended complaint, in which he brought claims under 42 U.S.C. § 1983
for alleged constitutional violations stemming from his 2008 arrest in Orange
County, Florida.
I.
Jackson first contends that the district court erred when it dismissed his
claims against Keith Vidler and Eric Capraun, two officers involved in his arrest,
and Kevin Beary, the sheriff of Orange County at the time he was arrested, based
on qualified immunity. We “review de novo a district court’s order dismissing a
complaint, accepting all allegations in the complaint as true and construing the
facts in a light favorable to the plaintiff.” Fortner v. Thomas, 983 F.2d 1024, 1027
(11th Cir. 1993). A district court may dismiss a complaint for failure to state a
claim upon which relief can be granted when the complaint’s allegations “indicate
the existence of an affirmative defense, so long as the defense clearly appears on
the face of the complaint.” Id. at 1028.
Qualified immunity protects government officials acting within their
discretionary authority “unless their conduct violates ‘clearly established statutory
or constitutional rights of which a reasonable person would have known.’”
Andujar v. Rodriguez, 486 F.3d 1199, 1202 (11th Cir. 2007). Once the defendant
has established that he was acting within his discretionary authority, “the burden
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shifts to [the plaintiff] to establish that the defendants’ conduct violated clearly
established law.” Harbert Int’l v. James, 157 F.3d 1271, 1284 (11th Cir. 1998).
A.
Jackson contends that Capraun and Vidler violated his Fourth Amendment
rights by falsely arresting him. According to Jackson’s complaint, he was arrested
as part of a sting set up by the Orange County Sheriff’s Department to catch
bicycle thieves. Vidler placed a bike in the street and the officers watched it.
Unaware of the watching officers, Jackson picked up the bike and rode away on it.
Capraun monitored Jackson as he rode away, and another officer 1 arrested him.
After Jackson’s arrest, Capraun transported him to the booking center.
The allegations indicate that in placing the bicycle on the street and arresting
Jackson, Vidler and Capraun were participating in a sting operation that was
“undertaken pursuant to the performance of” their duties as police officers and was
therefore within the scope of their authority. See Harbert Int’l, 157 F.3d at 1282.
The burden then shifts to Jackson to show that they violated his constitutional
rights.
“A warrantless arrest without probable cause violates the Fourth
Amendment and forms a basis for a section 1983 claim.” Rodriguez v. Farrell, 280
F.3d 1341, 1345 (11th Cir. 2002). “Probable cause to arrest exists when law
1
Jackson did not know the name of this third officer but alleged that he also violated his
constitutional rights. We discuss that claim in Section II.
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enforcement officials have facts and circumstances within their knowledge
sufficient to warrant a reasonable belief that the suspect had committed or was
committing a crime.” United States v. Floyd, 281 F.3d 1346, 1348 (11th Cir.
2002). “In the context of a claim for false arrest, an officer is entitled to qualified
immunity where that officer had arguable probable cause, that is, where reasonable
officers in the same circumstances and possessing the same knowledge as the
Defendants could have believed that probable cause existed to arrest the plaintiff.”
Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006) (quotation marks omitted).
Under Florida law, a defendant commits theft if he:
knowingly obtains or uses . . . the property of another with intent to,
either temporarily or permanently:
(a) Deprive the other person of a right to the property or a benefit
from the property.
(b) Appropriate the property to his or her own use or to the use of any
person not entitled to the use of the property.
Fla. Stat. § 812.014(1). Because the officers saw Jackson appropriate a
bicycle that he knew was not his, they had arguable probable cause to arrest
him for theft. Jackson argues that he believed the bike had been abandoned,
but a reasonable officer still could have concluded that Jackson took the bike
with the intent to appropriate the property of another, in violation of Fla.
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Stat. § 812.014(1).2 And there is no clearly established law that indicates
that a bicycle theft sting, like the one used by these officers, is a violation of
constitutional rights. Both Vidler and Capraun are entitled to qualified
immunity for Jackson’s false arrest claims.
B.
Jackson also contends that Capraun violated his Fourteenth Amendment
rights by showing a deliberate indifference to his medical needs. 3 According to
Jackson’s complaint, he was suffering from acute back pain, which had been
caused by another officer tackling him off of the bike to arrest him. He told
Capraun that he needed medical care for his acute back pain, but Capraun said that
Jackson would have to wait until he was through with his report. Twice while
Capraun was preparing the report, he stopped to assist in other arrests involving the
bicycle sting operation. As part of assisting in the arrests, Capraun sped down
bumpy dirt roads with Jackson riding in the back seat of the patrol car,
exacerbating Jackson’s back injury. Capraun eventually took Jackson to the
Orange County Booking and Release Center, where he was seen by medical staff
and treated for his injuries upon arrival.
2
We also note that under Florida law, “[i]t is unlawful for any person who finds any lost
or abandoned property to appropriate the same to his or her own use.” F.S.A. § 705.102(3).
3
Although the district court found that Jackson did not allege a Fourteenth Amendment
claim against Capraun, we will assume, given Jackson’s pro se status, that he did, in fact, assert
such a claim in his third amended complaint, given that he alleged that Capraun made him wait
to get medical attention even though he repeatedly told Capraun how much pain he was in.
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To prevail on a claim of deliberate indifference to serious medical need, a
plaintiff must show: “(1) a serious medical need; (2) the defendant’s deliberate
indifference to that need; and (3) causation between that indifference and the
plaintiff’s injury.” Youmans v. Gagnon, 626 F.3d 557, 563 (11th Cir. 2010)
(alterations and quotation marks omitted). “A serious medical need is one that has
been diagnosed by a physician as mandating treatment or one that is so obvious
that even a lay person would easily recognize the necessity for a doctor’s
attention.” Id. at 564 (quotation marks omitted). Although Jackson alleges that he
told Capraun about his back pain, he does not allege that his pain had been
diagnosed as mandating treatment and or that it would have been obvious to a
layperson that he needed treatment, so he has not sufficiently alleged a “serious
medical need.” See id. at 561 (concluding that the plaintiff had not established
serious medical need when he had “several cuts and abrasions on his head, face,
shoulder, elbow, and hand” and appeared to be bleeding slightly).
And even if we assume that Jackson’s back pain did constitute a “serious
medical need,” Capraun’s actions, as alleged in Jackson’s compliant, do not rise to
the level of a deliberate indifference. “To prove ‘deliberate indifference’ to a
serious medical need, a plaintiff must show (1) subjective knowledge of a risk of
serious harm; (2) disregard of that risk; (3) by conduct that is more than gross
negligence.” Id. at 564 (alterations and quotation marks omitted). Jackson alleged
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that Capraun delayed his treatment long enough for Capraun to fill out the arrest
report and to help in the arrest of two other people. That kind of delay does not
demonstrate that Capraun disregarded the risk to Jackson “by conduct that is more
than gross negligence.” See id. at 566 (concluding that the booking officer did not
violate the plaintiff’s constitutional rights when he spent three hours interviewing
and booking the plaintiff before getting him treatment for visible cuts and bruises
caused by the arresting officers).
C.
Jackson also contends that Kevin Beary, who was the sheriff at the time
Jackson was arrested, violated his constitutional rights under a respondeat superior
theory of liability and because he designed the bike sting operation.
“It is well established in this Circuit that supervisory officials are not liable
under § 1983 for the unconstitutional acts of their subordinates on the basis of
respondeat superior or vicarious liability. ” Cottone v. Jenne, 326 F.3d 1352, 1360
(11th Cir. 2003). But a supervisor may be liable under § 1983 when his “custom
or policy . . . result[s] in deliberate indifference to constitutional rights.” Rivas v.
Freeman, 940 F.2d 1491, 1495 (11th Cir. 1991). Because Jackson failed to allege
sufficient facts to show that the officers’ actions in executing the bike theft sting
violated his constitutional rights, he failed to show that any such custom or policy
instituted by Beary in connection with the sting operation resulted in a deliberate
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indifference to his constitutional rights. The district court did not err in granting
Vidler, Capraun, and Beary’s motions to dismiss based on qualified immunity.
II.
The district court dismissed sua sponte Jackson’s allegations against the
officer who participated in the arrest with Capraun and Vidler because Jackson
failed to serve him. “[W]e review for abuse of discretion a court's dismissal
without prejudice of a plaintiff's complaint for failure to timely serve a defendant
under Rule 4(m).” Rance v. Rocksolid Granit USA, Inc., 583 F.3d 1284, 1286
(11th Cir. 2009). A district court’s decision will not be disturbed on abuse of
discretion review if it falls within a range of permissible choices and is not
influenced by a mistake of law. Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir.
2006).
Jackson did not know the name of this officer but alleged that “Officer Doe”
was the officer who physically took him into custody, and, in doing so, used
excessive force. Jackson alleged that Officer Doe pushed him backwards off the
bicycle, causing him to fall on the ground and injure his back. Doe then dove on
top of him, even though Jackson asserts that he never resisted or attempted to
evade arrest. The court dismissed this claim because Jackson failed to identify and
then serve the officer within the time limit set by the court.
Under Federal Rule of Civil Procedure 4(m),
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If a defendant is not served within 120 days after the complaint is
filed, the court–on motion or on its own after notice to the plaintiff–
must dismiss the action without prejudice against that defendant or
order that service be made within a specified time. But if the plaintiff
shows good cause for the failure, the court must extend the time for
service for an appropriate period.
“Good cause exists only when some outside factor, such as reliance on faulty
advice, rather than inadvertence or negligence, prevented service.” Lepone-
Dempsey v. Carroll County Com’rs, 476 F.3d 1277, 1281 (11th Cir. 2007)
(quotation marks and alterations omitted).
Jackson argues that he had good cause for the failure to serve the officer
because he could not identify Doe. The district court gave Jackson 45 additional
days to successfully effect service on Doe and warned Jackson that a failure to
timely complete service would result in a dismissal of the action without further
notice. To facilitate service, the court also provided Jackson with the requisite
forms, as well as a list of instructions for their completion. Because the district
court instructed Jackson on the proper procedure for identifying and serving Doe,
extended his filing deadlines, and warned him that a failure to comply would result
in dismissal, and Jackson still failed to identify and serve Doe, the court acted
within its discretion by dismissing his claim without prejudice for failure to serve
under Rule 4(m).
III.
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After Jackson’s arrest, he was charged with grand theft and possession of
drug paraphernalia4 and prosecuted by Antonio Tapia, the assistant state attorney.
Jackson brought a claim against Tapia for malicious prosecution, and the district
court dismissed that claim based on prosecutorial immunity. “Prosecutors
performing ‘prosecutorial functions’ receive absolute immunity and are therefore
not subject to suit under 42 U.S.C § 1983.” Long v. Satz, 181 F.3d 1275, 1278
(11th Cir. 1999). If a defendant asserts prosecutorial immunity in a Rule 12(b)(6)
motion, “we ask if the allegations of the complaint disclose activities protected by
absolute immunity.” Id. at 1279. If the answer is yes, the defendant is immune
from suit. Id. “Prosecutorial immunity applies . . . to the prosecutor’s actions in
initiating a prosecution and presenting the State’s case.” Hart v. Hodges, 587 F.3d
1288, 1295 (11th Cir. 2009).
Jackson’s third amended complaint alleged that Tapia initiated the
prosecution against him with malicious intent, which Tapia displayed by calling
Jackson a “crack head” in an email to Jackson’s criminal defense attorney. Tapia
is entitled to absolute immunity for initiating the prosecution even if he did it with
malicious intent. See Hart, 587 F.3d at 1295 (“A prosecutor is immune for
malicious prosecution.”). The district court did not err in dismissing Jackson’s
claim against Tapia based on prosecutorial immunity.
4
The grand theft charges were later dismissed and Tapia entered a nolle prosequi on the
drug paraphernalia charge.
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IV.
Finally, Jackson argues that the court erred in sua sponte dismissing his
claim against Orange County under 28 U.S.C. § 1915(e)(2) for failure to state a
claim upon which relief can be granted. We review that dismissal de novo,
viewing the allegations in the complaint as true. Hughes v. Lott, 350 F.3d 1157,
1159–60 (11th Cir. 2003).
Jackson alleged that since 1981, he had been arrested five times by the
Orange County Sheriff’s Department. He asserted that he has also witnessed the
county deputy sheriffs entrapping citizens numerous times using illegal sting
operations. He contends that the illegality of those operations and the policies
supporting them was so obvious that the County had at least constructive
knowledge of the widespread abuse but failed to take any remedial steps to stop it.
Under Florida law, counties are not protected from suit by sovereign
immunity. Abusaid v. Hillsborough Cty Bd. of County Comm’rs, 405 F.3d 1298,
1314 (11th Cir. 2005). However, “[w]hen an officer is sued under Section 1983 in
his or her official capacity, the suit is simply another way of pleading an action
against an entity of which an officer is an agent.” Id. at 1302 n.3. In this case, that
means that Jackson’s suit against Beary was essentially another way of pleading an
action against Orange County. As we have discussed, Jackson’s complaint against
Beary was properly dismissed; his complaint against Orange County was properly
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dismissed for the same reasons. To the extent that Jackson alleges claims against
Orange County that he did not allege against Beary, they are based on allegations
that are too vague to state a claim upon which relief may be granted.
AFFIRMED.
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