[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAY 1, 2008
No. 07-14350
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 05-03124-CV-CAP-1
ELVESTER GOREE,
Plaintiff-Appellant,
versus
CITY OF ATLANTA, GA,
RICHARD PENNINGTON,
Individually and in his official capacity
as Chief of Police, Atlanta, Georgia,
OFFICER K. R. KEENEY,
OFFICER KNAPP,
Defendants-Appellees,
ARRESTING OFFICER, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 1, 2008)
Before ANDERSON, BIRCH and DUBINA, Circuit Judges.
PER CURIAM:
Elvester Goree, proceeding pro se, appeals the district court’s grant of the
defendants’ motion for summary judgment in his 42 U.S.C. § 1983 action. In
connection with an altercation that led to his arrest on disorderly conduct charges,
Goree alleged that the City of Atlanta, Georgia, the Chief of Police Richard
Pennington, and Atlanta police officers K.R. Keeney and Kevin Knapp
(collectively “defendants”), violated his Fourth and Fourteenth Amendment rights.1
In addition, Goree alleged numerous state law violations, including false
imprisonment, malicious arrest, malicious prosecution, intentional infliction of
emotional distress, assault, battery, intentional misrepresentation, conspiracy, and
“outrageous conduct.” After thorough consideration, we find Goree’s arguments
to be without merit and accordingly affirm the district court’s grant of summary
judgment.
We review pro se pleadings liberally, holding them to a less stringent
standard than those drafted by attorneys. Hughes v. Lott, 350 F.3d 1157, 1160
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When the plaintiff, like Goree, is a pretrial detainee, claims of cruel and unusual
punishment sound properly in the Fourteenth Amendment right to due process as opposed to the
Eighth Amendment. See Lancaster v. Monroe County, Ala., 116 F.3d 1419, 1425 n.6 (11th Cir.
1997). Because the applicable standard is the same under either provision, we can apply case
law involving prison inmates to cases involving arrestees and pretrial detainees. See Marsh v.
Butler County, Ala., 268 F.3d 1014, 1024 n. 5 (11th Cir. 2001) (en banc).
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(11th Cir. 2003). We review de novo a district court’s grant of summary judgment,
applying the same standards as a district court. Kingsland v. City of Miami, 382
F.3d 1220, 1225 (11th Cir. 2004). Summary judgment is appropriate only if there
are no genuine issues of material fact and the moving party is entitled to judgment
as a matter of law. Miller v. Harget, 458 F.3d 1251, 1255 (11th Cir. 2006), cert.
denied, 127 S. Ct. 2429 (2007). We view all of the evidence and factual inferences
in the light most favorable to the non-moving party and resolve all reasonable
doubts in the non-moving party’s favor. Kingsland, 382 F.3d at 1226. However,
“mere conclusions and unsupported factual allegations are legally insufficient to
defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th
Cir. 2005). Affidavit statements “that are based, in part, upon information and
belief, cannot raise genuine issues of fact, and thus also cannot defeat a motion for
summary judgment.” Id.
On appeal of his Fourth Amendment claim, Goree first argues that the police
officers did not have probable cause to arrest him because they did not interview
any witnesses before arresting him, and, even if they did, there is still a question of
fact regarding what the witnesses told the officers. He argues that the witnesses
and officers are either biased or liars based on: (1) his injuries compared to the
alleged victim’s injuries; (2) the physical characteristics of those involved in the
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altercation; (3) the past convictions of Baldwin, one of the witnesses; and (4) the
fact that the witnesses did not call the police.
A warrantless arrest without probable cause violates the Fourth Amendment
and can form the basis for a § 1983 claim. Rodriguez v. Farrell, 280 F.3d 1341,
1345 (11th Cir. 2002). However, if probable cause existed for an arrest, then the
Fourth Amendment was not violated. Jordan v. Mosley, 487 F.3d 1350, 1355
(11th Cir. 2007).
Probable cause exists when “the facts and circumstances within the officers’
knowledge, of which he or she has reasonably trustworthy information, would
cause a prudent person to believe, under the circumstances shown, that the suspect
has committed, is committing, or is about to commit an offense.” Id. at 1355
(internal quotation and citation omitted). “Probable cause does not require
overwhelmingly convincing evidence, but only reasonably trustworthy
information.” Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir. 1996) (internal
quotation and citation omitted).
We are satisfied that the circumstances, at the time, presented the officers
with probable cause to arrest Goree. We agree with the district court that Goree’s
own inconsistent statements make clear that the officers conducted some type of
investigation at the scene that led them to reasonably believe that Goree had
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instigated the altercation and that his injuries were the result of the putative
victim’s use of defensive force. The district court, therefore, did not err in granting
summary judgment on the Fourth Amendment claim because there was probable
cause to arrest Goree.
Challenging summary judgment on his Fourteenth Amendment claim, Goree
argues that the officers witnessed the extent of his physical injuries, including
blood flowing from his eyes and mouth, limping, and grimaces of pain. He
contends that the officers unnecessarily delayed taking him to the hospital for a
period of one hour and twenty minutes, and he contends that one hour of
unnecessary pain is the same as an hour of torture. He also contends that he should
have been transported by ambulance instead of by police car. He claims that the
officers knew that the possible consequences of his injuries included: (1) his retina
detaching; (2) blood clots; and (3) sprains or hairline fractures. He concludes that
the officers’ actions constituted unnecessary and wanton infliction of pain,
violating his Fourteenth Amendment rights.
To succeed on a § 1983 claim based on the Fourteenth Amendment, a
pretrial detainee must establish: (1) an “objectively serious deprivation,” in other
words, a serious medical need that if left unattended poses a substantial risk of
serious harm; (2) a response by the public official that is so inadequate that it
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constitutes “an unnecessary and wanton infliction of pain;” and (3) an attitude of
deliberate indifference by illustrating that the public official was aware of the facts
from which a substantial risk of serious harm could be inferred and drawing that
inference. Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000).
A medical need is serious when it “has been diagnosed by a physician as
mandating treatment or . . . is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.” Farrow v. West, 320 F.3d 1235,
1243 (11th Cir. 2003). “In either case, the medical need must be one that, if left
unattended, poses a substantial risk of serious harm.” Brown v. Johnson, 387 F.3d
1344, 1351 (11th Cir. 2004) (internal quotation and alteration omitted). For
example, we have found that evidence was sufficient to establish a “serious
medical need” where the plaintiff’s leg had collapsed, he was in extreme pain, and
could barely walk. Mandel v. Doe, 888 F.2d 783, 788 (11th Cir. 1989).
However, even if a party demonstrates a “serious medical need,” he still
must establish a “deliberate indifference” toward that need. See Farrow, 320 F.3d
at 1243. “To establish the second element, . . . the prisoner must prove three facts:
(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; and
(3) by conduct that is more than mere negligence.” Johnson, 387 F.3d at 1351.
The Supreme Court had held that “an official’s failure to alleviate a significant risk
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that he should have perceived but did not, while no cause for commendation,
cannot under our cases be condemned as the infliction of punishment.” Farmer v.
Brennan, 511 U.S. 825, 838, 114 S. Ct. 1970, 1979 (1994).
In this case, even assuming that Goree’s injuries constituted serious medical
needs, he has failed to offer any evidence that indicates the defendants treated him
with deliberate indifference so as to constitute wanton infliction of unnecessary
pain. It is undisputed that Goree was able to walk to the officers at the scene and
was ambulatory at the hospital, and therefore Goree has failed to demonstrate how
the officers disregarded a known risk when they transported him by police car,
rather than ambulance, or that they otherwise delayed his receiving treatment with
the requisite culpability. The district court properly granted summary judgment on
Goree’s Fourteenth Amendment claim.2
With regard to Appellant’s state law claims, Goree argues that he established
2
Because we have not found that Goree has pointed to facts that would constitute a
constitutional violation, we have not proceeded with the requisite qualified immunity analysis
that would otherwise protect these officers from liability under section 1983.
To the extent that Goree challenges on appeal the district court’s grant of summary
judgment to the City and Chief Pennington, his arguments fail for want of establishing a genuine
issue of material fact as to the underlying constitutional deprivation. See Rooney v. Watson, 101
F.3d 1378, 1381 (11th Cir. 1996) (“[A]n inquiry into a governmental entity's custom or policy is
relevant only when a constitutional deprivation has occurred.”). Moreover, Goree has also failed
to demonstrate that Chief Pennington had any personal involvement in this matter. See Brown v.
Crawford, 906 F.2d 667, 671 (11th Cir. 1990) (“Supervisory liability occurs either when the
supervisor personally participates in the alleged constitutional violation or when there is a causal
connection between actions of the supervising official and the alleged constitutional
deprivation.”).
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that the defendants acted with malice in arresting him without a warrant. He
claims that the defendants committed the intentional tort of false imprisonment
because there were no exigent circumstances to arrest him without a warrant, and
the Atlanta City Police rulebook informed the officers of the prohibition against
warrantless arrest in the absence of exigent circumstances. He argues that malice
can be inferred from knowledge that conduct is wrong, and the officers knew that
their conduct was wrong. He also alleges that the officers assaulted him by
allowing him to suffer unnecessary pain from his ankle injury. Further, he argues
that Chief Pennington can be held liable for these state law claims as his lack of
discipline constituted tacit approval of such violations.
In Georgia, false imprisonment is the unlawful detention of a person for any
length of time. O.C.G.A. § 51-7-20 (2007). The essential elements of such an
offense are the arrest or detention and the unlawfulness thereof. Arbee v. Collins,
463 S.E.2d 922, 926 (Ga. Ct. App. 1995). “The existence of probable cause
standing alone is not a complete defense in a false imprisonment case because,
even if probable cause to believe a crime has been committed exists, a warrantless
arrest would still be illegal unless it was accomplished pursuant to one of the
‘exigent circumstances’” set out by law. Id. at 926. Exigent circumstances include
if the offense is committed in the presence of the officer or within such officer’s
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immediate knowledge, the offender is trying to escape, or if there is likely to be a
failure of justice absent an immediate arrest. O.C.G.A. § 17-4-20.
In Georgia, official or qualified immunity “protects individual public agents
from personal liability for discretionary actions taken within the scope of their
official authority, and done without wilfulness, malice, or corruption.” Cameron v.
Lang, 549 S.E.2d 341, 344 (Ga. 2001) (internal quotation and citation omitted). A
public officer may be personally liable only for ministerial acts negligently
performed or discretionary acts performed with malice or an intent to injure. Id. at
344. Actual malice “requires a deliberate intention to do wrong.” Merrow v.
Hawkins, 467 S.E.2d 336, 337 (Ga. 1996). Actual intent to cause injury means “an
actual intent to cause harm to the plaintiff.” Kidd v. Coates, 518 S.E.2d 124, 125
(Ga. 1999).
Here, the defendants are entitled to official immunity on the state law claims.
The record does not show any support for Goree’s contentions that the actions of
the defendants demonstrated the requisite malice to overcome official immunity
under state law. Goree’s unsupported allegations of a conspiracy to frame him for
the altercation is insufficient to pierce the protections of official immunity on these
claims.
We find no reason to question the well reasoned decision of the district court
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and accordingly the judgment is
AFFIRMED.3
3
Appellant’s request for oral argument is denied.
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