[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JANUARY 3, 2007
No. 06-11094 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-61977-CV-JAL
QUINTON HAWTHORNE,
Plaintiff-Appellant,
versus
SHERIFF OF BROWARD COUNTY,
Ken Jenne,
Defendant,
BERNARD BROWN,
WILLIE DOWE,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 3, 2007)
Before TJOFLAT, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Quinton Hawthorne, a Florida state prisoner proceeding pro se, appeals the
district court’s grant of summary judgment to Broward County Sheriff’s Deputies
Bernard Brown and Willie Dowe (the “Officers”) on his 42 U.S.C. § 1983 claim
alleging that the officers violated his rights under the Fourth Amendment. For the
reasons that follow, we affirm.
I. Background
The facts in the light most favorable to Hawthorne are as follows.1 On July
26, 2002, Officers Brown and Dowe went to the home of Hawthorne’s father to
question Hawthorne about a burglary. Upon the Officers’ arrival, they told
Hawthorne, who was outside the residence, that they wanted to question him about
his possible involvement in a burglary and that they wished to take him to the
station for questioning. In response, Hawthorne became belligerent and verbally
abusive, telling the Officers that he had nothing to say unless they had an arrest
warrant. As the Officers continued their attempts to question Hawthorne, at some
1
As discussed below, in reviewing a motion for summary judgment, we construe the
facts in the light most favorable to the non-moving party. Wood v. Kesler, 323 F.3d 872, 875
n.1 (11th Cir. 2003).
2
point, a struggle ensued.2 During the struggle, Hawthorne grasped onto the hood
of the Officers’ vehicle in order to resist their efforts to restrain him. As the
struggle continued, Hawthorne bit into Officer Dowe’s arm. After Hawthorne
ignored the Officers’ orders to stop biting Dowe’s arm, Officer Brown struck
Hawthorne in the face in an effort to stop the biting. Ultimately, the Officers were
forced used pepper spray to subdue Hawthorne long enough to place him in
handcuffs. Hawthorne continued to kick and thrash about after he was handcuffed,
and after he was placed inside another deputy’s vehicle, he kicked out a window.
In her deposition, Hawthorne’s wife testified that just minutes before the Officers’
arrival, Hawthorne had drank several beers and snorted two bags of cocaine.
Hawthorne was charged with battery on a law enforcement officer,
aggravated battery on a law enforcement officer, and resisting a law enforcement
officer with violence. He pleaded no contest to, and was convicted of, all three
charges. While in pretrial detention, Hawthorne filed a complaint under 42 U.S.C.
§ 1983 against Officers Brown and Dowe3 in their individual capacities, alleging
that they had arrested him without probable cause, made false statements, and used
2
Officers Brown and Dowe assert that at this point, Hawthorne pushed Officer Brown in
the chest. Hawthorne, however, denies ever pushing or striking Officer Brown.
3
In his original complaint, Hawthorne also named Sheriff Ken Jenne as a defendant. The
district court, however, dismissed the complaint as to Jenne pursuant to 28 U.S.C.
§ 1915(2)(2)(b)(ii) for failure to state a claim upon which relief could be granted.
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excessive force to effectuate his arrest.
The Officers moved to dismiss or, in the alternative, for a more definite
statement, and Hawthorne responded by elaborating on his claims. The magistrate
judge construed Hawthorne’s response as an amended complaint alleging that the
Officers violated Hawthorne’s Fourth Amendment rights by: (1) arresting him
without either a warrant or probable cause; (2) falsely stating that he committed the
offenses for which he was convicted to support the charges against him and cover
up their brutality; and (3) using excessive force to effectuate his arrest.
Following discovery, the Officers filed motions for summary judgment and
to dismiss, to which Hawthorne filed a response. The magistrate judge entered a
12-page report outlining the history of the litigation, the facts, and the controlling
law, and recommending that summary judgment be granted to the Officers. After
reviewing the record, the magistrate’s report, and Hawthorne’s objections, the
district court adopted the report and granted summary judgment in favor of the
Officers. Hawthorne timely filed this appeal.
II. Discussion
We review a district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to the party opposing the motion. Cotton
v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1230 (11th Cir. 2006).
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Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
there are no genuine issues as to any material fact and that the moving party is
entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). “In determining
whether an issue of fact is ‘genuine’ for the purpose of defeating summary
judgment, we ask whether the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Hudgens v. Bell Helicopters/Textron, 328 F.3d
1329, 1344-45 (11th Cir. 2003) (citations omitted). Once the moving party meets
its burden of showing the absence of a genuine issue of material fact, the burden
shifts to the non-moving party to submit sufficient evidence to rebut the showing
with affidavits or other relevant admissible evidence. Avirgan v. Hull, 932 F.2d
1572, 1577 (11th Cir. 1991).
A. Arrest Without Probable Cause
First, we must resolve whether there is a genuine issue of material fact
concerning whether Officers Brown and Dowe had probable cause to arrest
Hawthorne. Hawthorne claims that probable cause could not have existed for his
arrest because the Officers attempted to question him about a burglary without
either a warrant or probable cause to suspect his involvement. This claim
implicates the Fourth Amendment’s guarantee against unreasonable searches and
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seizures, which “encompasses the right to be free from arrest without probable
cause.” Crosby v. Monroe County, 394 F.3d 1328, 1332 (11th Cir. 2004). The
district court (via its adoption of the magistrate’s report) held that Hawthorne’s
false arrest claim was barred under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct.
2364, 129 L.Ed.2d 383 (1994), or, if not Heck-barred, was subject to summary
disposition based on the Officers’ entitlement to qualified immunity. We agree
with the latter determination.
A government official sued for a constitutional violation under § 1983 may
seek summary judgment on the ground that he is entitled to qualified immunity.
Crosby, 394 F.3d at 1332. Qualified immunity protects from liability government
officials sued in their individual capacities if their conduct “does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396
(1982)). To be eligible for qualified immunity, a government official first must
show that he was performing a discretionary function at the time the alleged
violation of federal law occurred. Crosby, 394 F.3d at 1332. Once the official has
established that he was engaged in a discretionary function, the plaintiff bears the
burden of demonstrating that the official is not entitled to qualified immunity by
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showing (1) that the defendant has committed a constitutional violation and (2) that
the constitutional right the defendant violated was “clearly established” at the time
the violation occurred. Id. “In the context of a claim for false arrest, an officer is
entitled to qualified immunity where that officer had ‘arguable probable cause’” to
effectuate the arrest. Davis v. Williams, 451 F.3d 759, 762-63 (11th Cir. 2006).
Arguable probable cause exists where an objectively reasonable officer in the same
circumstances and possessing the same knowledge as the officers effectuating the
arrest could have believed that probable cause existed. See Thornton v. City of
Macon, 132 F.3d 1395, 1399 (11th Cir. 1998).
Here, it is undisputed that the Officers were acting within the scope of their
discretionary authority when they arrested Hawthorne. Moreover, it is undisputed
that when the Officers attempted to take Hawthorne into custody, (1) he grasped
the hood of the Officers’ vehicle and would not let go; (2) he bit Officer Dowe on
the arm and ignored the Officers’ orders to stop; and (3) the Officers did not strike
Hawthorne until he began biting Dowe. Based on these facts, a reasonable officer
could have believed that arguable probable cause existed to arrest Hawthorne for
the offenses with which he was charged—resisting a law enforcement officer with
violence, battery, and aggravated battery on a law enforcement officer.4
4
See Fla. Stat. Ann. §§ 784.03, 784.045, 784.07, 843.01.
7
Regardless of whether the Officers had a warrant or probable cause to arrest
Hawthorne for the burglary when they initially approached him, Hawthorne’s
actions thereafter constituted an intervening set of events giving rise to (at least)
arguable probable cause for his arrest. Thus, we conclude that Hawthorne has not
shown a constitutional violation, and we need not proceed to the second question
in the qualified immunity analysis (the “clearly established” inquiry). See
Vinyard, 311 F.3d at 1346.
B. False Statements
Our next inquiry is whether there is a genuine issue of material fact
concerning whether the Officers violated Hawthorne’s Fourth Amendment rights
by falsely stating in their police report that he had violently resisted and battered
them in order justify the arrest and cover up their alleged brutality. The court
below determined that this claim of false statements was barred under Heck
because if Hawthorne were to prevail, this would necessarily imply the invalidity
of his underlying convictions. We agree.
Under Heck, a state prisoner may not bring a claim for damages under
§ 1983 “if a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction.” Heck, 512 U.S. at 487, 114 S.Ct. at 2372. Thus,
unless the plaintiff-prisoner can demonstrate that the conviction or sentence has
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already been invalidated, the complaint must be dismissed. Id. Here, Hawthorne
contends that the Officers falsely stated that he committed the offenses for which
he is now incarcerated. To prevail on this claim, Hawthorne must necessarily
establish that he did not commit the offenses for which he was convicted. Hence, a
judgment in Hawthorne’s favor on this claim would necessarily imply the
invalidity of his underlying convictions. Because Hawthorne has not demonstrated
that his convictions have already been invalidated, this claim is barred under Heck.
See id. at 487, 114 S.Ct. at 2372.
C. Excessive Force
We next turn to Hawthorne’s claim that the Officers used excessive force to
effectuate his arrest. The court below held that the Officers were entitled to
qualified immunity on this claim. We agree.
The use of excessive force in carrying out an arrest constitutes a violation of
the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865,
1870-71, 104 L.Ed.2d 443 (1989). Nonetheless, this court recognizes “that the
typical arrest involves some force and injury.” Rodriguez v. Farrell, 280 F.3d
1341, 1351 (11th Cir. 2002). In excessive force cases, an officer will be entitled to
qualified immunity “if an objectively reasonable officer in the same situation could
have believed that the force used was not excessive.” Vinyard, 311 F.3d at 1346.
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“[T]he 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).
Here, it is undisputed that when the Officers attempted to take Hawthorne
into custody, (1) Hawthorne grasped onto the hood of the Officers’ vehicle and
would not let go; (2) he bit Officer Dowe and continued the biting despite orders to
stop; (3) the Officers never struck Hawthorne until he bit Dowe; and (4) the
Officers could not even handcuff Hawthorne until he was subdued with pepper
spray, and even then, he continued to kick and thrash about. Although the Officers
admit that Officer Brown struck Hawthorne in the face, nothing in the record
corroborates Hawthorne’s assertion that the Officers banged or slammed his head
onto a police car. And in her deposition, Hawthorne’s wife testified that
Hawthorne had drank several beers and snorted cocaine shortly before the Officers
arrived. Finally, Fire Rescue Captain John O’Berry, who interviewed and treated
Hawthorne following his arrest, reported seeing no bruises, edema, or bleeding.
On these facts, a reasonable officer could have believed that the force used during
Hawthorne’s arrest was not excessive. Accordingly, we conclude that the force
used by the Officers to effectuate Hawthorne’s arrest did not violate the
Constitution.
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III. Conclusion
For the foregoing reasons, we AFFIRM the judgments of the district court.
11