holding that grant of summary judgment, even if erroneous, was harmless in light of later determinations by jury
How later courts described this case
- holding that grant of summary judgment, even if erroneous, was harmless in light of later determinations by jury
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The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 19, 2006
Nos. 05-16538, 05-16539, 05-16835 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-22173-CV-AJ
ADREAN LANS,
Plaintiff-Appellant,
versus
MELISSA STUCKEY,
DONALD LAGO,
ARIEL SAUD,
SALVADOR LOZANO,
JORGE HUGO GOMEZ,
CITY OF MIAMI,
a Florida Municipal corporation,
Defendants-Appellees.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(October 19, 2006)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Adrean Lans, proceeding pro se, appeals several adverse rulings related to
the judgment against his complaint of misconduct by the City of Miami and five of
its police officers during the course of Lans’s arrest on charges of soliciting
prostitution. We affirm.
I. BACKGROUND
On the evening of September 5, 2001, Miami police officers Melissa
Stuckey, Donald Lago, Ariel Saud, Salvador Lozano, and Jorge Gomez were
involved in a “reverse-sting” operation regarding solicitation of prostitution.
Stuckey was standing at a bus stop, posing as a prostitute. Lans drove by in his
car. After several events, discussed below, Lago brought Lans in a police car to
the Allapattah police station, while Saud drove Lans’s vehicle to the station. At the
station, Gomez completed the paperwork regarding Lans’s arrest, and Lozano
prepared the paperwork for the impoundment of Lans’s vehicle.
According to the facts found by the district court following a bench trial,
Lans had driven by Stuckey and offered her money in exchange for oral sex.
Stuckey gave a signal for Lans to be taken down, after which Lago ordered Lans to
get out of his vehicle. Lago performed a pat-down search, took Lans immediately
into custody, and brought Lans to the police station.
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Lans’s version of the arrest differs. Lans contends that he recognized
Stuckey when he drove by her and, for that reason, offered her a ride, which she
declined. Lans contends that Lago never received a “take-down” signal. Lago
stopped Lans, and took Lans’s wallet and two cell phones, but then let Lans drive
away after being told by Stuckey to do so. Lans alleges that he returned to retrieve
a cell phone from Lago, was stopped again, and was taken into custody by Lago,
who brought Lans to the police station.
Lans filed a complaint with claims for relief under both federal and state
law. Lans alleged in his complaint that Stuckey, Lago, Saud, Lozano, Gomez, and
the City of Miami are liable to him for damages based on violations of his federal
civil rights. See 42 U.S.C. § 1983. Lans’s complaint also asserted claims against
Stuckey, Lago, Saud, Lozano, and Gomez for malicious prosecution and claims
against all the defendants for false imprisonment and false arrest.
During discovery, Lans served subpoenas duces tecum on Stuckey and
Gomez together with notices of depositions. Lans later filed two motions to
compel Stuckey and Gomez to produce additional documents in compliance with
the subpoenas. The magistrate judge to whom discovery motions had been
referred denied Lans’s motions.
Lago, Saud, Lozano, and Gomez moved for summary judgment on all the
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claims against them, and the City of Miami moved for summary judgment on the
section 1983 claim against it. The district court denied Lago’s motion and granted
the motions filed by Saud, Lozano, Gomez, and the City of Miami. The district
court held a bench trial on all the claims against Stuckey and Lago and on the false
arrest claim against the City of Miami. Gomez, Stuckey, Lago, and Lans testified.
Crediting the testimony of the police officers, the district court concluded that the
officers had probable cause to arrest Lans and granted judgment to Stuckey, Lago,
and the City of Miami on all of the remaining claims against them. Lans filed
three separate notices of appeal, which have been consolidated for this decision.
II. DISCUSSION
Lans appeals (1) the denial of two of his motions to compel; (2) the
conclusion of the district court that Stuckey and Lago had probable cause to arrest
Lans for soliciting prostitution, and the finding of fact that supports the conclusion;
(3) the grant of summary judgment to Saud, Lozano, and Gomez; (4) the grant of
summary judgment to the City of Miami; (5) the denial of a motion for a
continuance that he filed during trial; and (6) the denial of a motion to recuse that
he filed after the trial ended. We discuss each issue in turn.
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A. The Magistrate Judge Did Not Abuse His Discretion in Denying
Lans’s Motions To Compel
“When reviewing a . . . denial of a motion to compel discovery, we apply an
abuse of discretion standard.” Holloman v. Mail-Well Corp., 443 F.3d 832, 837
(11th Cir. 2006). The district court is permitted a “range of choice,” and we will
not “second-guess” its actions unless they “reflect a clear error of judgment.” Id.
(internal quotation marks omitted). The magistrate judge did not abuse his
discretion. The magistrate judge concluded that Stuckey and Gomez had complied
with Lans’s subpoenas duces tecum to the full extent possible. The magistrate
judge credited certain representations made under oath by Stuckey and Gomez at
their depositions, as well as representations made in open court by counsel for the
defendants. The magistrate judge did not commit a clear error of judgment in
crediting those representations.
B. The District Court Did Not Err in Concluding That
There Was Probable Cause for Lans’s Arrest
At the bench trial, the district court credited the testimony of the officers and
found that Lans had offered Stuckey money in exchange for oral sex. On the basis
of that finding, the district court concluded that there was probable cause for
Lans’s arrest. Lans contends that the district clearly erred in its finding of fact and
in its conclusion that probable cause existed. We disagree.
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We review de novo the determination that probable cause existed, but review
the supporting findings of fact for clear error. United States v. Jiminez, 224 F.3d
1243, 1248 (11th Cir. 2000). Determinations of witness credibility fall within the
exclusive province of the fact-finder and may not be revisited unless the testimony
is “‘incredible as a matter of law.’” United States v. Calderon, 127 F.3d 1314,
1325 (11th Cir. 1997) (quoting United States v. Hewitt, 663 F.2d 1381, 1386 (11th
Cir. 1981)). Witness testimony is incredible as a matter of law only when it is
“unbelievable on its face” and when it testifies to “facts that the witness physically
could not have possibly observed or events that could not have occurred under the
laws of nature.” Id. (internal quotation marks omitted).
Lans’s arguments that the district court erroneously found probable cause
fail. Because Stuckey’s testimony that Lans offered her money in exchange for
oral sex is not incredible as a matter of law, the district court correctly determined
that there was probable cause for Lans’s arrest for soliciting prostitution. See Fla.
Stat. § 796.07. That the district court did not find that Lans actually paid Stuckey
or that Lans had any money on his person is immaterial, because the crime of
soliciting prostitution does not require the actual exchange of money. That the
officers also may have arrested Lans under the wrong subsection of the Florida
prostitution statute is of no moment. “‘[W]hen an officer makes an arrest, which is
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properly supported by probable cause to arrest for a certain offense, neither his
subjective reliance on an offense for which no probable cause exists nor his verbal
announcement of the wrong offense vitiates the arrest.’” Lee v. Ferraro, 284 F.3d
1188, 1196 (11th Cir. 2002) (quoting United States v. Saunders, 476 F.2d 5, 7 (5th
Cir.1973)).
C. Even if Erroneous, the Grant of Summary Judgment to
Saud, Lozano, and Gomez Was Harmless Error
We review a grant of summary judgment de novo. Bosarge v. U.S. Dep’t of
Educ., 5 F.3d 1414, 1417 (11th Cir. 1993). The district court granted Saud,
Lozano, and Gomez summary judgment against Lans’s claim under section 1983
based on qualified immunity. Qualified immunity protects police officers
performing discretionary functions from liability under section 1983 as long as
their conduct does not violate a clearly established constitutional right. See Rich v.
Dollar, 841 F.2d 1558, 1563 (11th Cir. 1988). After an officer establishes that his
acts were within the scope of his discretionary authority, the burden then shifts to
the plaintiff, id. at 1563-64, who faces a two-step inquiry: the plaintiff must (1)
establish that the officer violated a constitutional right and (2) establish that the
violated right was clearly established, Kingsland v. City of Miami, 382 F.3d 1220,
1232 (11th Cir. 2004).
At the summary judgment stage, Lans contended that the evidence
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demonstrated that Saud, Lozano, and Gomez participated in a bad faith and illegal
arrest that violated his clearly established constitutional rights. The district court
disagreed. As to Lans’s state law claims against Saud, Lozano, and Gomez, the
district court also granted summary judgment, because it determined that the
Florida sovereign immunity statute, Fla. Stat. § 768.28(9)(a), shielded the officers.
Even if the district court erred in entering summary judgment, any error was
harmless. Because we affirm the conclusion of the district court following the
bench trial that there was probable cause for Lans’s arrest, Lans could not in any
event have sustained any of his claims against Saud, Lozano, or Gomez. The
summary judgment, even if erroneous, “did not affect the substantial rights of the
parties.” Fed. R. Civ. P. 61; cf. Wilson v. Muckala, 303 F.3d 1207, 1219 (10th Cir.
2002) (holding that grant of summary judgment, even if erroneous, was harmless
in light of later determinations by jury).
D. Even if Erroneous, the Grant of Summary Judgment to
the City of Miami Was Harmless Error
A municipality may be liable under section 1983 for the actions of a police
officer “only when municipal ‘official policy’ causes a constitutional violation.”
Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998) (quoting Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 2037-38 (1978)). A
plaintiff must “‘identify a municipal “policy” or “custom” that caused [his]
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injury.’” Id. (quoting Bd. of County Comm'rs v. Brown, 520 U.S. 397, 403, 117
S.Ct. 1382, 1388 (1997)). The district court granted summary judgment to the City
of Miami on the ground that Lans failed to identify a policy or custom.
Even if the district court erred, the error was harmless. Because we affirm
the conclusion of the district court following the bench trial that there was probable
cause for Lans’s arrest, Lans could not in any event have established that he was
arrested illegally and suffered a constitutional violation. Lans could not have
sustained his section 1983 claim against the City of Miami.
E. The District Court Did Not Abuse Its Discretion in Denying
Lans’s Motion for a Continuance
During the bench trial, in the middle of his direct examination of Stuckey,
Lans filed a motion for a continuance. Lans argued two bases for his motion: (1)
the need to obtain deposition transcripts for the purpose of impeaching witnesses;
and (2) the need to procure the attendance of his physician, who would testify as to
medical damages. The district court denied the continuance, but informed Lans
that, in the event that he prevailed on liability, he would have the opportunity to
bring in his physician on the issue of damages. Lans contends that the district
court erred in denying his motion. We disagree.
As a preliminary matter, the district court effectively granted Lans a
continuance with respect to the testimony of Lans’s physician, and as to the
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continuance with respect to the deposition transcripts, we review the denial of a
motion for a trial continuance for abuse of discretion. United States v. Bowe, 221
F.3d 1183, 1189 (11th Cir. 2000). We consider four factors: (1) the extent of the
movant’s diligence in his efforts to be ready on the date of the trial; (2) how likely
it is that the need on which the request for the continuance was based could have
been met had the continuance been granted; (3) the extent to which the continuance
would have inconvenienced the court and the opposing parties; and (4) the extent
to which the movant might have suffered harm as a result of the denial. Quiet
Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1350-51 (11th Cir.
2003) (quoting Hashwani v. Barbar, 822 F.2d 1038, 1040 (11th Cir. 1987)). We
are “mindful that ‘[t]he denial of a continuance is within the broad discretion of the
district court and will not be overturned unless arbitrary or unreasonable.’” Id.
(quoting Hashwani, 822 F.2d at 1040).
The district court did not abuse its discretion. Lans had taken depositions
more than seven months before the trial, and at the summary judgment hearing,
approximately six weeks before the trial, the district court had reminded Lans to
order deposition transcripts. As of the day of the trial, Lans had not ordered the
transcripts. Lans’s extreme lack of diligence, coupled with the fact that the trial
had already begun, gave the district court ample reason to deny Lans a
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continuance.
F. The District Court Did Not Abuse Its Discretion in Denying
Lans’s Motion To Recuse
On November 9, 2005, several days after the bench trial had concluded and
judgment had been entered against Lans, Lans filed a motion to recuse the district
court. See 28 U.S.C. § 455(a). In a thorough order, the district court denied Lans’s
motion. Lans contends that the district court erred. We disagree.
Section 455(a) provides that a judge “shall disqualify himself in any
proceeding in which his impartiality might reasonably be questioned.” Id. We
review the decision of the district court not to recuse under section 455(a) for
abuse of discretion. United States v. Bailey, 175 F.3d 966, 968 (11th Cir. 1999).
The district court did not abuse its discretion. Except for Lans’s disagreement with
certain rulings that the district court made during the bench trial, all of the grounds
upon which Lans relies for his motion to recuse were known to him before the
district court ruled against him on the merits. We have previously held that a
party, “knowing the facts claimed to support a § 455(a) recusal for appearance of
partiality[,] may not lie in wait, raising the recusal issue only after learning the
court’s ruling on the merits.” Phillips v. Amoco Oil Co., 799 F.2d 1464, 1472
(11th Cir. 1986) (citing United States v. Slay, 714 F.2d 1093, 1094 (11th Cir.
1983)). As for the rulings during the bench trial, those rulings cannot serve as the
11
basis for a recusal motion unless the movant also demonstrates “pervasive bias and
prejudice” by the district court. McWhorter v. City of Birmingham, 906 F.2d 674,
678 (11th Cir. 1990) (internal quotation marks omitted). The district court
exhibited no bias or prejudice against Lans. On the contrary, the transcript reflects
that the district court exhibited patience in the face of ad hominem attacks by Lans,
and the district court attempted repeatedly to assist Lans with perfecting this
appeal.
III. CONCLUSION
The judgment against Lans is
AFFIRMED.
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