The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 23, 2007
No. 06-13061 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00877-CV-2-SLB-HGD
JERRY WAYNE GLOVER,
Plaintiff-Appellant,
versus
EIGHT UNKNOWN D.E.A. AGENTS/
DRUG TASK FORCE AGENTS FROM
BIRMINGHAM, ALABAMA TASK FORCE,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(February 23, 2007)
Before BIRCH, CARNES and HULL, Circuit Judges.
PER CURIAM:
Jerry Glover appeals the district court’s grant of summary judgment to the
eight DEA agents involved in his arrest. Glover bases his claims on 42 U.S.C.
§ 1983 and Bivens v. Six Unknown Agents of the Fed. Bureau of Narcotics, 403
U.S. 388, 91 S. Ct. 1999 (1971), asserting that his Fourth, Fifth, Eighth, and
Fourteenth Amendment1 rights were violated. First, Glover contends that his
Fourth Amendment rights were violated when the agents unlawfully entered his
home without a search warrant and seized evidence. Second, he claims that the
agents used excessive force in arresting him when they stripped his clothes off and
blasted him with a fire hose for fifteen minutes in below freezing temperatures.
The district court found that the agents were entitled to qualified immunity and
granted summary judgment in their favor. Glover now appeals.
On January 16, 2002, the agents attempted to secure a search warrant for
Glover’s residence on the suspicion that he was operating a clandestine
methamphetamine lab there. The magistrate judge determined that the agents
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We find that Glover’s Fifth, Eighth and Fourteenth Amendment claims lack merit. The
allegations at issue here center on an unlawful search and seizure and should be analyzed under
the Fourth Amendment, not the due process clauses of either the Fifth or Fourteenth
Amendment. Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 1871 (1989) (noting that
“all claims that law enforcement officers have used excessive force . . . or other ‘seizure’ of a
free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard,
rather than under a ‘substantive due process’ approach”). Furthermore, it is clear that the Eighth
Amendment only applies to convicted inmates, and Glover was neither convicted nor an inmate
at the time the alleged excessive force occurred. See Hale v. Tallapoosa County, 50 F.3d 1579,
1582 n.4 (11th Cir. 1995).
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lacked sufficient evidence to merit a warrant. So the agents arranged to have a
confidential source enter Glover’s house on the pretense of delivering a tank of
anhydrous ammonia he had ordered. The ammonia is one of the chemicals used to
manufacture methamphetamine. The source was wired and agents were
monitoring the situation, ready to raid the alleged lab if necessary. In their
affidavits, the agents state that after entering Glover’s residence, the source started
coughing and complaining of chemical fumes over the wire. Glover claims that he
never heard any coughing but admits that the source went upstairs to use the
bathroom.
Fearing the source was being exposed to noxious chemicals, the agents
entered Glover’s house and made the arrest. Glover claims that when the agents
entered he stood still, raised his hands and did not resist. Nonetheless, the agents
grabbed him and pulled him into the garage. He was then questioned about the
presence of guns and chemicals in the house. After about thirty minutes of
searching, the agents found only denatured alcohol, a small amount of
methamphetamine and an unopened container of anhydrous ammonia in the
garage. Nevertheless, one of the agents walked by an exhaust fan that was
ventilating the house and received a chemical burn. He went to the emergency
room for treatment. Glover does not contest that the agent went to the hospital, but
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he does claim that there was no chemical burn.
After the search, the agents told Glover that he needed to be decontaminated
because he was wet with chemicals. Glover claims that he was only wet with
perspiration and that there were no chemicals. The agents did not have the wading
pool normally used to decontaminate a suspect, so they created a partial screen
with a tarp, had Glover strip naked, and washed him with a fire hose for several
minutes. Four of the agents involved in the decontamination attested that Glover
was hosed for less than a minute. A neighbor who witnessed the events stated in
her affidavit that the hosing lasted about five minutes. Glover claims it lasted
fifteen minutes, but he fails to state a specific length of time in his sworn affidavit.
The agents also claim the hose was more akin to a garden hose with a shower
nozzle, while Glover claims that the pressure was so intense that it took two men to
hold the hose. It was cold and windy at the time. After being hosed down, Glover
was given a Tyvek suit and placed in one of the agent’s vehicles with the heat on.
Glover eventually pleaded guilty to attempting to manufacture
methamphetamine, in violation of 21 U.S.C. § 846, and the possession of
pseudoephedrine, in violation of 21 U.S.C. § 841(c)(2). He was sentenced to 122-
months imprisonment and three years of supervised release. Glover now seeks
review of the district court’s grant of summary judgment in favor of the agents on
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his § 1983 claims based on qualified immunity.
We review de novo a district court’s grant of summary judgment. Steele v.
Shah, 87 F.3d 1266, 1269 (11th Cir. 1996). We view the record in the light most
favorable to the non-moving party. Id. The moving party has the initial burden of
establishing that there are no genuine issues of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552 (1986). If the moving party is
successful, the non-moving party must come forward with evidence beyond the
pleadings (i.e., affidavits or other admissible evidence) showing that a genuine
issue of material fact exists. Id. at 324, 106 S. Ct. at 2553. “A mere scintilla of
evidence supporting the opposing party’s position will not suffice; there must be
enough of a showing that the jury could reasonably find for that party.” Walker v.
Darby, 911 F.2d 1573, 1577 (11th Cir. 1990).
Bivens actions are analogous to § 1983 actions, and we will generally apply
§ 1983 law to Bivens cases. Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir.
1995). It is well settled that § 1983, by itself, does not create any substantive
rights, “but merely provides a method for vindicating federal rights elsewhere
conferred.” Graham v. Connor, 490 U.S. 386, 393–94, 109 S. Ct. 1865, 1870
(1989) (internal quotations and citation omitted). Therefore, to prevail in a § 1983
action, the plaintiff must show that he was deprived of a federal right by a person
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acting under the color of state law. Griffin v. City of Opa-Locka, 261 F.3d 1295,
1303 (11th Cir. 2001). Here, Glover claims his Fourth Amendment right to be free
from an unlawful search and from the use of excessive force was violated.
The district court found that the agents were entitled to qualified immunity
and granted summary judgment in their favor. For qualified immunity to apply, a
government official first must show that he was performing a discretionary
function at the time the alleged violation of federal law occurred. Crosby v.
Monroe County, 394 F.3d 1328, 1332 (11th Cir. 2004). We agree with the district
court that the agents were performing a discretionary function in (1) entering
Glover’s residence because they feared a dangerous methamphetamine lab and in
(2) decontaminating Glover before exposing officers and other inmates to the toxic
chemicals that they thought had saturated his clothing.
As to the second step of the qualified immunity inquiry, Glover bears the
burden of demonstrating that (1) that the agents committed a constitutional
violation and (2) that the violated constitutional right was “clearly established” at
the time of the incident in question. Id. at 1332. Following the Supreme Court’s
directive in Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001), we
cannot, as the magistrate judge did here, simply assume that a constitutional
violation occurred and move on to the “clearly established” prong. Therefore, we
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begin our analysis of each claim with a determination of whether there was a
constitutional violation. If no violation occurred, our inquiry is concluded and
qualified immunity was properly granted.
First, we address Glover’s claim that the agents unlawfully entered his house
without a warrant and wrongfully seized his property. Even considering the facts
in the light most favorable to Glover, the agents did not violate his constitutional
rights when they entered his house without a warrant, because there is no need for
a warrant when exigent circumstances demand immediate entry. Further, there was
no unlawful seizure because all evidence taken was in plain view.
We have held that “when exigent circumstances demand an immediate
response, particularly where there is danger to human life, protection of the public
becomes paramount and can justify a limited, warrantless intrusion into the home.”
United States v. Holloway, 290 F.3d 1331, 1334 (11th Cir. 2002). Thus, a
warrantless search and seizure, even of a home, is justified where both probable
cause and exigent circumstances exist. United States v. Davis, 313 F.3d 1300,
1302 (11th Cir. 2002). Here, the agents had probable cause to believe that the
confidential source was in danger because of the possible existence of a volatile
methamphetamine lab. Holloway, 290 F.3d at 1337 (concluding that “emergency
situations involving endangerment to life fall squarely within the exigent
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circumstances exception”); Davis, 313 F.3d at 1302 (probable cause exists in
emergencies where officers reasonably believe someone is in danger).
The agents knew that (1) the confidential source was coughing and appeared
unable to breathe; (2) they had received a tip that Glover was manufacturing
methamphetamine and ordering dangerous chemicals, and (3) as stated in the
agents’ affidavits, the area around the house smelled of chemicals. That evidence
was sufficient to justify entry. See, e.g., United States v. Atchley, No. 04-6521,
2007 WL 148761, at *7 (6th Cir. Jan. 23, 2007) (noting that an exigency may exist
in cases involving methamphetamine labs where other people are in the vicinity
because of the dangers associated with cooking and storing the chemicals used);
United States v. Rhiger, 315 F.3d 1283, 1290 (10th Cir. 2003) (holding that
warrantless entry of a residence was justified where agents knew defendant was
purchasing materials used to make methamphetamine, smelled the odor of cooking
methamphetamine, and were aware of the dangers of an active methamphetamine
lab); United States v. Spinelli, 848 F.2d 26, 30 (2d Cir. 1988) (holding that the
exigent circumstances test was met because of the flammable and explosive nature
of the chemicals used to make methamphetamine).
We note that Glover argues that the agents fabricated evidence and created
exigent circumstances so they could enter his home without a warrant.
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Nevertheless, this assertion is based solely on Glover’s conclusory allegations
without the support of any admissible evidence. We have consistently held that
such allegations are insufficient to create a genuine issue of material fact. Leigh v.
Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000) (noting that “conclusory
allegations without specific supporting facts have no probative value” and that one
who “resists summary judgment must meet the movant’s affidavits with opposing
affidavits setting forth specific facts to show why there is an issue for trial”).
Additionally, the agents’ seizure of some chemicals and a small quantity of
methamphetamine from Glover’s home did not violate the Fourth Amendment,
because the agents attest that everything seized was in plain view and Glover
offered no contrary evidence. If entry into a residence is justified, an officer is
permitted to seize any evidence in plain view. United States v. McGough, 412
F.3d 1232, 1238 (11th Cir. 2005). Thus, there was no constitutional violation in
either the entry or the seizure, and we need not reach the second prong of the
analysis in order to find that the agents were entitled to qualified immunity on
Glover’s illegal entry and illegal seizure claims.
Second, we address Glover’s excessive force argument. To assert a
violation of the Fourth Amendment for the use of excessive force, the plaintiff
must allege that (1) a seizure occurred and (2) the force used to effect the seizure
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was unreasonable. Troupe v. Sarasota County, Fla., 419 F.3d 1160, 1166 (11th
Cir. 2005), cert. denied, 126 S. Ct. 1914 (2006). It is clear that some force is
permissible in making an arrest. Graham, 490 U.S. at 396, 109 S. Ct. at 1871–72
(“[T]he right to make an arrest or investigatory stop necessarily carries with it the
right to use some degree of physical coercion or threat thereof to effect it.”). A
constitutional violation only occurs when the officer’s use of force is “objectively
unreasonable” in light of the totality of the circumstances at the time the force is
used. Id. at 397, 109 S. Ct. at 1872–73. Our inquiry into “reasonableness” is
objective: “the question is whether the officer’s actions are ‘objectively
reasonable’ in light of the facts and circumstances confronting him, without regard
to his underlying intent or motivation.” Crosby, 394 F.3d at 1333.
Additionally, we have set out three factors to consider in determining if
force was reasonable: (1) the need for the force, (2) the relationship between the
need and the amount of force used, and (3) the extent of any injury to the suspect.
Lee v. Ferraro, 284 F.3d 1188, 1197–98 (11th Cir. 2002). Thus, the agents are
entitled to qualified immunity “if an objectively reasonable officer in the same
situation could have believed that the force used was not excessive.” Vinyard v.
Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002).
Based on the facts here, even taken in the light most favorable to Glover, the
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decontamination process was not excessive, and qualified immunity was properly
granted. The agents’ conduct was objectively reasonable in light of the danger
Glover would have presented to himself as well as to the officers and other inmates
if he was covered in dangerous chemicals. The district court accepted Glover’s
assertion that the hosing lasted fifteen minutes, but Glover never attested to a
specific length of time in his sworn affidavit. The only evidence he submitted on
the duration of the hosing was the affidavit testimony of his neighbor who
witnessed the events, which Glover submitted with his response to the defendants’
reply to the order for a special report. That affidavit says that the hosing lasted
about five minutes. Because Glover’s bare assertion that he was sprayed for fifteen
minutes is not “evidence,” viewing the evidence in the light most favorable to him
requires us to accept the neighbor’s affidavit attesting that the hosing lasted only
about five minutes. See Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991)
(“A nonmoving party, opposing a motion for summary judgment supported by
affidavits cannot meet the burden of coming forth with relevant competent
evidence by simply relying on legal conclusions or evidence which would be
inadmissible at trial.”).
Thus, construing the facts in the light most favorable to Glover—his clothes
were wet with perspiration, not chemicals, it was thirty-nine degrees outside, and
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he was hosed down for five minutes—we find that the agents’ conduct was
reasonable. They knew or had reason to believe that (1) Glover was operating a
methamphetamine laboratory in his home; (2) he had some of the necessary
chemicals delivered to his house; (3) the chemicals required to produce
methamphetamine are extremely dangerous; (4) the confidential source who
entered the house had difficulty breathing and complained of the chemical smell;
(5) the area around the house smelled of chemicals; and (6) Glover was wet and
smelled of chemicals when he was taken from the house.
Even if the agents were mistaken in their belief that Glover was saturated
with chemicals, the mistake was a reasonable one. Saucier, 533 U.S. at 206, 121 S.
Ct. at 2158–59 (noting that in excessive force cases, “qualified immunity can apply
in the event the mistaken belief was reasonable “).
Additionally, we note that the force used here was not excessive, considering
typical decontamination procedures. One of the agents noted in his affidavit that
under normal DEA protocol an individual suspected of being saturated with
dangerous chemicals would be washed in a small wading pool for ten or fifteen
minutes. The exposure to the wind and cold likely would have been the same.
What’s more, Glover alleged no actual injury aside from his brief exposure to the
cold. Because, the agents reasonably, even if mistakenly, believed that a
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decontamination procedure of the duration imposed was necessary before Glover
could be transported safely back to the station, there was no constitutional
violation.
We need not reach either the agents’ argument that the statue of limitations
bars Glover’s claims or their argument that Glover’s claims are barred by the
Supreme Court’s decision in Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364
(1994), because they would undermine his criminal conviction.
AFFIRMED.
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