Kynnedirae Charles v. Gary Chambers

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11636

Non-Argument Calendar

____________________

KYNNEDI’RAE JOAN CHARLES,

Plaintiff-Appellant,

versus

POLICE OFFICER GARY WAYNE CHAMBERS,

POLICE OFFICER ROBERT GREENE,

POLICE OFFICER CHRISTOPHER RICHARD SCUDERI,

JOHN WAGNER, JR.,

individually and in his official capacity,

CITY OF WARNER ROBINS, GEORGIA,

Defendants-Appellees,

2 Opinion of the Court 23-11636

JOHN C. JUMP,

individually and in his official capacity,

Defendant.

____________________

Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 5:21-cv-00153-MTT

____________________

Before WILSON, ROSENBAUM, and GRANT, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant Kynnedi’Rae Joan Charles appeals the

district court’s grant of summary judgment to Defendants-Appel-

lees Officer Robert Greene, Officer Christopher Richard Scuderi,

Chief John Wagner, Jr., and the City of Warner Robins (collec-

tively, Defendants) on constitutional and state law claims arising

out of her encounter with the Warner Robins Police Department

(WRPD) while her car was being towed from a storefront parking

lot. She argues that the district court erred in granting summary

judgment: (1) in favor of Officers Greene and Scuderi on her Fourth

Amendment claims of unlawful arrest and excessive force; (2) in

favor of Officers Greene and Scuderi on her state law tort claims;

and (3) in favor of the City of Warner Robins and Chief Wagner on

23-11636 Opinion of the Court 3

her supervisory liability and failure to train claims. After careful re-

view, we find no error in the district court’s decision and affirm.

I.

We review a district court’s grant of summary judgment de

novo, “applying the same legal standard employed by the district

court in the first instance.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112,

1117 (11th Cir. 1993). Summary judgment is appropriate only when

no genuine issue of material fact exists, 1 and the moving party is

“entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In

determining whether the movant has met this burden, we view the

evidence in the light most favorable to the non-movant. Alvarez v.

Royal Atl. Devs., Inc., 610 F.3d 1253, 1263–64 (11th Cir. 2010).

The district court granted Officer Greene and Officer

Scuderi summary judgment on Charles’ unlawful arrest and exces-

sive force claims, holding that the officers were entitled to qualified

immunity. 2 To prevail on a qualified immunity defense, the officers

must establish that they were acting under their “discretionary

1 As the district court noted, Charles did not respond to Defendants’ asserted

facts with citations to the record, and she failed to provide her own statement

of material facts that adequately cited to the record (despite the district court

providing written notice of her duty to do so). Where Charles did not address

Defendants’ assertions of fact, the district court properly considered Defend-

ants’ asserted facts undisputed for summary judgment purposes. Fed. R. Civ.

P. 56(e)(2); see M. Dist. Ga. R. 56.

2 The unlawful arrest claim and the excessive force claim must be analyzed

separately, even though they originated from the same fact pattern. Richmond

v. Badia, 47 F.4th 1172, 1181 (11th Cir. 2022).

4 Opinion of the Court 23-11636

authority.” Est. of Cummings v. Davenport, 906 F.3d 934, 940 (11th

Cir. 2018). Charles does not dispute that Defendants were acting

within the scope of their discretionary authority. Because the de-

fendants have met this burden, the burden then shifts to Charles to

show that: (1) the officers’ conduct violated her constitutional

rights; and (2) those rights were clearly established. Id. There are

three ways to show a right is clearly established:

(1) by pointing to a materially similar decision of the

Supreme Court, of this Court, or of the supreme

court of the state in which the case arose; (2) by es-

tablishing that a broader, clearly established principle

should control the novel facts of the case; or (3) by

convincing us that the case is one of those rare ones

that fits within the exception of conduct which so ob-

viously violates the constitution that prior case law is

unnecessary.

Powell v. Snook, 25 F.4th 912, 920 (11th Cir. 2022) (internal quota-

tions omitted and alteration adopted).

Charles specifically argues that Officers Greene and Scuderi

are not protected by the shield of qualified immunity because they

violated her clearly established Fourth Amendment rights against

unlawful arrest and excessive force by arresting her without prob-

able cause, tasing her when she was not resisting arrest, pushing

her against her car while wrenching her arm behind her back, and

assisting with a repossession in violation of Eleventh Circuit law

and Georgia repossession law.

23-11636 Opinion of the Court 5

II.

We turn first to Charles’ argument that Officers Greene and

Scuderi violated her clearly established Fourth Amendment right

against unlawful arrest by arresting her without probable cause.

The Fourth Amendment protects citizens from searches and sei-

zures that are unreasonable, including unlawful arrests. See Case v.

Eslinger, 555 F.3d 1317, 1326 (11th Cir. 2009). A warrantless arrest

without probable cause is per se unconstitutional, and it provides a

basis for a false arrest claim under 42 U.S.C. § 1983. Id. at 1326–27.

On the other hand, if probable cause supports the arrest, the ar-

restee has no basis for a § 1983 action. Id. “Probable cause exists

when the facts and circumstances within the officer’s 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 com-

mit an offense.” Wilkerson v. Seymour, 736 F.3d 974, 978 (11th Cir.

2013) (internal quotation marks omitted).

Based on the facts in the record, construed in the light most

favorable to Charles, the district court held that Officers Greene

and Scuderi had probable cause to arrest Charles for two different

crimes under Georgia law: reckless conduct and obstruction of an

officer. We agree.

Under Georgia law, reckless conduct occurs when:

A person . . . causes bodily harm to or endangers the

bodily safety of another person by consciously disre-

garding a substantial and unjustifiable risk that his or

6 Opinion of the Court 23-11636

her act or omission will cause harm or endanger the

safety of the other person and the disregard consti-

tutes a gross deviation from the standard of care

which a reasonable person would exercise in the situ-

ation.

O.C.G.A. § 16-5-60(b).

As evidenced by the cell phone video in Officer Greene’s

bodycam footage, Charles’ attempt to drive her car off the tow

truck while it was still attached endangered the safety of other peo-

ple because the tires were turning, and the car was bouncing. The

vehicle could easily have broken free and hit the stores in front of

it. Charles disputes the officers’ accounts of what is shown in the

video, arguing that she did not realize her car was hooked up to the

tow truck when she tried to back out of her parking spot. She also

argues, citing to Reese v. Herbert, 527 F.3d 1253, 1269 (11th Cir.

2008), that the district court should have considered her account of

what is happening in the video, rather than accepting Defendants’

account.

However, we have previously made clear that “we accept

video evidence over the nonmoving party’s account when the for-

mer obviously contradicts the latter.” Richmond v. Badia, 47 F.4th

1172, 1179 (11th Cir. 2022). Officer Greene’s bodycam footage is

clear—the cell phone video shown in the footage depicts the rear

of the car bouncing as the tires spun, and the video evidence clearly

contradicts Charles’ account of the facts (albeit an account that was

not properly submitted to the district court on summary

23-11636 Opinion of the Court 7

judgment). Thus, the district court was correct in finding that there

was probable cause to arrest Charles for reckless conduct.

We also agree with the district court’s holding that the offic-

ers had probable cause to arrest Charles for obstruction of an of-

ficer, based on her conduct when the officers tried to remove her

from the vehicle. Under Georgia law, obstruction of an officer oc-

curs when someone “knowingly and willfully resists, obstructs, or

opposes any law enforcement officer . . . in the lawful discharge of

his or her official duties by offering or doing violence to the person

of such officer.” O.C.G.A. § 16-10-24(b). Charles refused the offic-

ers’ requests to exit the vehicle, and when the officers tried to re-

move her, she placed the car in drive and floored the accelerator.

She also resisted and struggled against the officers when they tried

to place handcuffs on her. 3 The interaction resulted in injury to

Officer Greene’s hand.

Thus, we affirm the district court’s grant of summary judg-

ment to Officer Greene and Officer Scuderi on Charles’ Fourth

Amendment claim of unlawful arrest.

3 Citing Glenn v. State, 849 S.E.2d 409, 420 (Ga. 2020), Charles argues she has

the right under Georgia law to resist unlawful arrests without committing the

offense of obstruction, and her arrest was unlawful because the officers had no

lawful reason to ask her to exit her car. While she is correct about her right

under Georgia law, we are unpersuaded by her argument because the arrest

was lawfully supported by probable cause.

8 Opinion of the Court 23-11636

III.

Next, we turn to Charles’ argument that Officers Scuderi

and Greene violated her clearly established Fourth Amendment

right to be free from excessive force by tasing her when she was

not resisting arrest, by pushing her into her vehicle, and by wrench-

ing her arm behind her back with some force. Indeed, the Fourth

Amendment protects citizens against the use of excessive force in

arrests. Charles v. Johnson, 18 F.4th 686, 699 (11th Cir. 2021). A par-

ticular use of force is unconstitutional if it is objectively unreason-

able “under the facts and circumstances of a specific case,” judged

from the perspective of a reasonable officer on the scene. Stephens

v. DeGiovanni, 852 F.3d 1298, 1321 (11th Cir. 2017).

In making that determination, a court first decides “whether

the specific kind of force is categorically unconstitutional.” Charles,

18 F.4th at 699. If not, the court considers whether the amount of

force was excessive, weighing the following factors:

(1) the severity of the suspect’s crime, (2) whether the

suspect poses an immediate threat of harm to others,

(3) whether the suspect is actively resisting arrest or

trying to flee, (4) the need for the use of force, (5) the

relationship between the need for force and the

amount of force used, and (6) how much injury was

inflicted.

Wade v. Daniels, 36 F.4th 1318, 1325 (11th Cir. 2022).

23-11636 Opinion of the Court 9

We turn first to the alleged tasing of Charles. In this circuit,

taser use “is not categorically unconstitutional.” Charles, 18 F.4th at

701 (collecting cases). As a result, we next determine whether the

use of a taser was an excessive amount of force under the circum-

stances. We agree with the district court’s analysis of the factors.

Even interpreting all facts in favor of Charles, her actions posed an

immediate risk of harm to the people in the building in front of her,

the tow truck driver, and the police officers. She refused the offic-

ers’ request to exit the vehicle after trying to drive it off the bed of

the truck, requiring the police to use some force to remove her

from the vehicle, and she sustained minor injuries. Therefore, even

if Charles was tased, the tasing was not excessive and was not,

therefore, unconstitutional.

We turn next to the pushes, pulls, and shoves used to re-

move Charles from the car. During an arrest, “the application of de

minimis force, without more, will not support a claim for excessive

force in violation of the Fourth Amendment.” Baxter v. Roberts, 54

F.4th 1241, 1269 (11th Cir. 2022) (quotation marks omitted). Addi-

tionally, we have declined to find excessive force in cases with

pushes, shoves, and pulls more extreme than the instant case. See,

e.g., Nolin v. Isbell, 207 F.3d 1253, 1255–59 (11th Cir. 2000); Rodriguez

v. Farrell, 280 F.3d 1341, 1351–53 (11th Cir. 2002). Charles argues

that the district court failed to properly consider the fact that she

was pregnant at the time of the altercation. Pointing to Moore v.

Gwinnett County, 967 F.2d 1495 (11th Cir. 1992), Charles claims that

in determining whether a particular exercise of force is excessive,

10 Opinion of the Court 23-11636

courts must consider the individual characteristics of each party,

including the suspect’s pregnancy.

However, in Moore, we held that the officer’s use of force to

physically restrain a pregnant suspect attempting to flee the scene

of a misdemeanor was not unreasonable. 967 F.2d at 1499. Charles

fails to cite any cases where a particular use of force was excessive

due to the pregnancy of the defendant. If excessive force did not

occur in Nolin, Rodriguez, and Moore, it most certainly did not occur

here. We agree with the district court that the pushes, shoves, and

pulls that the police utilized to remove Charles from the car, in-

cluding pushing her against the car and moving her arm behind her

back, were de minimis and therefore constitutional.

Thus, we affirm the district court’s grant of summary judg-

ment to Officer Greene and Officer Scuderi on Charles’ Fourth

Amendment claim of excessive force.

IV.

Next, we turn to Charles’ argument that Officers Scuderi

and Greene violated clearly established law by assisting with the

self-help repossession of her car. Charles points to Wright v. Shep-

pard, 919 F.2d 665, 673 (11th Cir. 1990) to support her claim.4

4 She also cites Georgia repossession law. See Fulton v. Anchor Sav. Bank, FSB,

452 S.E.2d 208, 213 (Ga. 1994) (explaining that once the debtor starts protest-

ing the repossession, the repossession itself is no longer peaceful and becomes

illegal). However, we find it inapplicable to the situation before us. We are not

asked to determine whether the repossession itself was lawful. Our present

23-11636 Opinion of the Court 11

Wright states that “[i]f an officer departs from the role of neutral

law enforcement officer by attempting to enforce a private debt

collection, and engages in conduct that effectively intimidates an

alleged debtor into refraining from exercising her legal rights, then

the officer exceeds constitutional limits on his authority.” Id. at 673;

cf. Booker v. City of Atlanta, 776 F.2d 272, 273–74 (11th Cir. 1985) (per

curiam) (holding that an officer's “mere presence” at truck repos-

session “to prevent a breach of the peace” would not be sufficient

to give the court subject matter jurisdiction over “state action” §

1983 claim).

Charles cites our precedent in Wright, which cites Booker, but

both cases are distinguishable. In Wright, a police officer took a

debtor into his patrol car and brought him to the home of the cred-

itor to discuss the debt—notably, the debtor did not want to go

with the officer to the home of the creditor, and the officer made

the debtor go under “the threat of force.” 919 F.2d at 668. Here,

Charles admits in her affidavit that she was the one who initially

called the police, Doc. 62 ¶¶ 5–7, not the creditor who was trying

to enforce the debt. Charles wanted the police involved—the

debtor in Wright did not.

In Booker, a police officer stood watch over a repossession to

ensure that it took place peacefully. 776 F.2d at 273. We held that

summary judgment was improper because a jury could find that

the officer’s “arrival with the repossessor gave the repossession a

consideration is to determine whether the defendants’ rights were violated by

the police, not by the private creditor or towing company.

12 Opinion of the Court 23-11636

cachet of legality and had the effect of intimidating Booker into not

exercising his legal right to resist.” Id. at 274. We contrasted that

case with Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th

Cir. 1980), 5 where the defendant police officers arrived on scene

and “became involved only after a breach of the peace was threat-

ened.” Booker, 776 F.2d at 274 (referencing the facts in Menchaca).

Here, unlike in Booker, the police did not accompany the re-

possessor to the scene; they were responding to Charles’ call after

she saw the repossessor towing her car. See id. Also in Booker, there

was an issue of fact as to whether the officer’s presence intimidated

the debtor into not exercising his legal right to resist. Id. In our case,

Charles did everything she could to resist, literally resisting arrest,

to try to exercise the rights she thought she had. 6 Thus, Officers

Greene and Scuderi did not assist with a self-help repossession in

violation of “clearly established law.”

V.

We next turn to Charles’ claims that Officers Greene and

Scuderi committed the torts of assault, battery, negligence, inten-

tional infliction of emotional distress, and negligent infliction of

5 See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (holding that

all the decisions of the “old Fifth” Circuit handed down prior to close of busi-

ness on September 30, 1981, are binding precedent in the Eleventh Circuit).

6 Additionally, the constitutional issues at play in Booker—procedural due pro-

cess and state action—are distinctly different from the constitutional issues

Charles raised at the district court and again on appeal—Fourth Amendment

unlawful arrest and excessive force. Booker, 776 F.2d at 273.

23-11636 Opinion of the Court 13

emotional distress. The district court granted summary judgment

to the officers on all the state law claims on the ground that Officers

Greene and Scuderi are entitled to official immunity under Georgia

law.

Official immunity covers “discretionary actions taken within

the scope of [an officer’s] official authority.” Gates v. Khokhar, 884

F.3d 1290, 1304 (11th Cir. 2018) (footnote and quotation marks

omitted). In Georgia, official immunity protects officers from per-

sonal liability as long as the “officer[s] did not act with ‘actual mal-

ice’ or ‘actual intent to cause injury.’” Id. (quoting Ga. Const. art. I,

§ 2, para. IX(d)). Actual malice means “a deliberate intention to do

wrong.” Id. (quotation marks omitted). Actual intent to cause in-

jury means “an actual intent to cause harm to the plaintiff, not

merely an intent to do the act purportedly resulting in the claimed

injury.” Id. (quotation marks omitted).

As we explained, Officers Greene and Scuderi were operat-

ing within their discretionary authority. The record also demon-

strates that Officers Greene and Scuderi did not have a deliberate

intention to do wrong. They tried to peacefully remove Charles

from the vehicle and only used the force necessary to remove her

after she recklessly attempted to drive the car off the tow truck.

Their efforts were intended to end the dangerous situation, not to

do wrong; thus, their actions show no evidence of actual malice.

Additionally, when Officers Greene and Scuderi removed Charles

from the vehicle, they did so after she turned the car on, floored

the accelerator, and obstructed their attempts to remove her from

14 Opinion of the Court 23-11636

the vehicle. Once they had her out of the car and in cuffs, they ap-

plied no additional force. Thus, there is no evidence that they in-

tended to cause harm to Charles, and the Officers showed no actual

intent to cause injury. As a result, we affirm the district court’s de-

cision that Officer Greene and Officer Scuderi are entitled to official

immunity on the Georgia tort claims.

VI.

Finally, we turn to Charles’ argument that Chief Wagner

and the City of Warner Robins are liable under a theory of super-

visory liability and failure to train. We address Chief Wagner first

and then turn to the City of Warner Robins.

As to Chief Wagner, as the district court noted, “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.” Keith v. DeK-

alb Cnty., 749 F.3d 1034, 1047 (11th Cir. 2014) (internal quotation

marks omitted and alteration adopted). “Instead, to hold a supervi-

sor liable a plaintiff must show that the supervisor either directly

participated in the unconstitutional conduct or that a causal con-

nection exists between the supervisor’s actions and the alleged con-

stitutional violation.” Id. at 1047–48.

Similarly, a supervisor can be liable for failure to train under

42 U.S.C. § 1983 when the “failure to train amounts to deliberate

indifference to the rights of persons with whom the subordinates

come into contact and the failure has actually caused the injury of

which the plaintiff complains.” Belcher v. City of Foley, 30 F.3d 1390,

23-11636 Opinion of the Court 15

1397 (11th Cir. 1994) (internal quotation marks omitted). The

plaintiff must show that “the supervisor had actual or constructive

notice that a particular omission in their training program causes

his or her employees to violate citizens’ constitutional rights, and

that armed with that knowledge the supervisor chose to retain that

training program.” Keith, 749 F.3d at 1052 (internal quotation

marks omitted and alteration adopted).

As we found that no violations of Charles’ constitutional

rights occurred, we also find that Chief Wagner is not liable to

Charles on theories of supervisory liability and failure to train. The

district court did not err in granting summary judgment to Chief

Wagner.

Next, we turn to the alleged liability of the City of Warner

Robins. A “[c]ity is not automatically liable under section 1983 even

if it inadequately trained or supervised its police officers and those

officers violated [a party’s] constitutional rights.” Gold v. City of Mi-

ami, 151 F.3d 1346, 1350 (11th Cir. 1998). Section 1983 liability for

“failure to train or supervise” occurs “only where the municipality

inadequately trains or supervises its employees, this failure to train

or supervise is a city policy, and that city policy causes the employ-

ees to violate a citizen’s constitutional rights.” Id. Based on that

standard, a violation of the plaintiff’s constitutional rights is re-

quired to find the City liable. See id. Because we held that Officers

Greene and Scuderi did not violate Charles’ constitutional rights,

the City cannot be held liable under 42 U.S.C. § 1983.

16 Opinion of the Court 23-11636

VII.

In sum, we affirm the district court’s grant of summary judg-

ment in favor of Officers Greene and Scuderi on Charles’ Fourth

Amendment unlawful arrest and excessive force claims and her

Georgia tort claims, and grant of summary judgment in favor Chief

Wagner and the City of Warner Robins on Charles’ supervisory

liability and failure to train claims.

AFFIRMED.