[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Aug. 21, 2008
No. 08-10004 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-22665-CV-PCH
THEODORE DUKES,
LYNN SMITH,
BRIAN SCRUGGS,
Plaintiffs-Appellees,
versus
MIAMI-DADE COUNTY,
et al.,
Defendants,
OFFICER ERIC GOLDBERG, Individually,
OFFICER KIMBERLY LLAMBES, Individually,
OFFICER ENRIQUE GUERRA, , Individually,
OFFICER REGINA DEAN, Individually,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 21, 2008)
Before BIRCH, DUBINA and PRYOR, Circuit Judges.
PER CURIAM:
Officers Eric Goldberg, Kimberly Llambes, Enrique Guerra, and Regina
Dean appeal the denial of their motion for summary judgment based on qualified
immunity. The district court concluded that genuine issues of material fact barred
summary judgment. We affirm.
Theodore Dukes, Lynn Smith, and Brian Scruggs filed a complaint against
officers Goldberg, Llambes, Guerra, and Dean that alleged injuries arising out of a
traffic stop followed by a chase and arrest. Dukes, Smith, and Scruggs alleged that
the officers used excessive force in violation of the Fourth and Fourteenth
Amendments of the U.S. Constitution and failed to intervene when other officers
used excessive force during the arrest. The officers moved to dismiss the
complaint based on qualified immunity, which the district court denied in part.
The officers appealed. We affirmed in part and concluded that the complaint
alleged sufficient facts to create a issue of fact about Goldberg’s use of force and
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the ability of the officers to intervene. Dukes v. Miami-Dade County, slip no. 06-
11629 (11th Cir. May 10, 2007).
This second appeal by the officers concerns counts II, III, and IV of the
fourth amended complaint. Again the district court denied the officers qualified
immunity. The district court concluded that there were genuine issues of material
fact about whether Goldberg was justified in using force against Dukes during the
first stop; whether Goldberg and Dean used de minimis force to arrest Dukes;
whether Guerra and Llambes used excessive force to arrest Dukes; whether Guerra
used de minimis force to arrest Scruggs; and whether Goldberg, Dean, Guerra, and
Llambes failed to intervene while other officers used excessive force against
Dukes.
We review de novo the denial of summary judgment based on qualified
immunity and construe all facts and make all reasonable inferences in the light
most favorable to the nonmoving party. Tinker v. Beasley, 429 F.3d 1324, 1326
(11th Cir. 2005).
The evidence presented by Dukes, Smith, and Scruggs creates jury questions
about the need for Goldberg to use force, the amount of force used to arrest Dukes
and Scruggs, and the officers’ presence, participation in, and failure to intervene in
several assaults of Dukes after he was handcuffed. The district court
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acknowledged the officers’ arguments regarding the absence of physical injury to
substantiate Dukes’s and Scruggs’s allegations, but the district court correctly
concluded that medical evidence was not required to create a genuine issue of
material fact for trial. The district court correctly evaluated the motion for
summary judgment in the light of allegations contained in the fourth amended
complaint, which superceded the earlier complaints. See Lowery v. Ala. Power
Co., 483 F.3d 1184, 1219–20 (11th Cir. 2007). Any contradictions in the
allegations made by Dukes, Smith, and Scruggs may be used at trial to impeach
them or to attack their credibility. See Fed. R. Evid. 608(b); Jackson v.
McWilliams Dredging Co., 76 F.2d 795, 797 (5th Cir. 1935).
The denial of summary judgment is AFFIRMED.
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