The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
April 22, 2008
No. 07-12323 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-61036-CV-DTKH
LUIS ARTIGA,
Plaintiff-Appellee,
versus
OFFICER RICHARD GARCIA,
2328,
GREGORY SALADINO,
1704,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 22, 2008)
Before BIRCH, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Officers Richard Garcia and Gregory Saladino appeal the district court’s
order denying their motion for summary judgment based on qualified immunity in
this pro se civil rights action filed by Luis Artiga, pursuant to 42 U.S.C. § 1983,
alleging use of excessive force during an arrest. Appellants contend that they are
entitled to qualified immunity with respect to Luis Artiga’s sole surviving claim
related to the time subsequent to his initial confinement in Officer Garcia’s patrol
car.1 After careful review, we affirm.
We review de novo a district court’s entry of a summary judgment motion
based on qualified immunity, applying the same legal standards as the district
court. See Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002). We resolve all
issues of material fact in favor of the plaintiff, and then determine the legal
question of whether the defendant is entitled to qualified immunity under that
version of the facts. Id.
A government official who is sued under § 1983 may seek summary
judgment on the ground that he is entitled to qualified immunity. Holloman ex rel.
1
The district court entered summary judgment on Artiga’s other § 1983 claims, for false
arrest and malicious prosecution, based on qualified immunity. Artiga has not raised any challenge
to the rulings on these other claims. Accordingly, such claims are abandoned. See Horsley v. Feldt,
304 F.3d 1125, 1131 n. 1 (11th Cir. 2002) (concluding claim not raised on appeal abandoned).
2
Holloman v. Harland, 370 F.3d 1252, 1263 (11th Cir. 2004). As we observed in
Lee v. Ferraro:
Qualified immunity offers “complete protection for government
officials sued in their individual capacities as long as ‘their conduct
violates no clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Thomas v. Roberts,
261 F.3d 1160, 1170 (11th Cir. 2001) (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982))
(additional quotations omitted). The purpose of this immunity is to
allow government officials to carry out their discretionary duties
without the fear of personal liability or harassing litigation, see
Anderson v. Creighton, 483 U.S. 635, 638, 107 S. Ct. 3034, 3038, 97
L. Ed. 2d 523 (1987), protecting from suit “all but the plainly
incompetent or one who is knowingly violating the federal law.”
Willingham v. Loughnan, 261 F.3d 1178, 1187 (11th Cir. 2001).
Because qualified immunity is a defense not only from liability, but
also from suit, it is “important for a court to ascertain the validity of a
qualified immunity defense as early in the lawsuit as possible.” GJR
Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1370 (11th Cir.
1998) (citation omitted).
284 F.3d at 1193-94. To be eligible for qualified immunity, the official must first
establish that he was performing a “discretionary function” at the time the alleged
violation of federal law occurred. Holloman, 370 F.3d at 1263-64. Here, there is
no question that the officers were engaged in a discretionary function -- they were
in the process of making a lawful arrest.
Once the public official has established that he was acting within the scope
of his discretionary authority, the burden shifts to the plaintiff to establish that
qualified immunity does not apply. See Lee v. Ferraro, 284 F.3d at 1194. To
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determine if the plaintiff has met his burden, we apply the Supreme Court’s
two-part test for evaluating a claim of qualified immunity: (1) “[t]aken in the light
most favorable to the party asserting the injury, do the facts alleged show the
officer’s conduct violated a constitutional right?” and (2) if a constitutional right
would have been violated under the plaintiff’s version of the facts, the court must
then determine “whether the right was clearly established.” Saucier v. Katz, 533
U.S. 194, 201 (2001); Holloman, 370 F.3d at 1264.
The district court found the following:
It is amply clear, as to the first alleged use of force which
involved attempting to drag the handcuffed Artiga to a police car after
he had been arrested and admittedly refused to walk, and then
apparently involved the use of a mace-like chemical agent in order to
make Artiga comply with verbal orders to approach and enter the
police car, that the defendant officers are entitled to qualified
immunity. (As to this incident, the plaintiff acknowledged at
deposition that in light of his admitted resistence, this was the only
thing the officer could have done to safely make him comply. It
appears the use of force was applied for the purpose of making the
arrestee Artiga comply with a lawful order to approach and enter a
waiting police vehicle, that the use of force was necessary under the
circumstances, and that the amount of force which was applied was
measured, i.e., the minimum amount necessary to facilitate placement
of the resisting arrestee into the police car).
With respect to the uses of force which are alleged to have
occurred after Artiga’s initial placement in a police vehicle, however,
it is apparent, based on the evidence of record, that there are genuine
issues of material fact, the existence of which precludes summary
judgment. These include genuine issues regarding the nature and
extent of force used by the officers, and which officer or officers used
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it; the nature and extent of any resistence which may have been
offered by the plaintiff. . . ; whether any such resistance offered by the
plaintiff had ceased at such time that the alleged uses of force by
officers applied; and finally, the nature and extent of injuries sustained
by the plaintiff and whether or not they were self-inflicted, the result
of a trip and fall, or caused by force applied by the defendant officers.
The district court’s identification of genuine issues of material fact
concerning the claim for the alleged use of excessive force after Artiga’s initial
placement in Officer Garcia’s patrol car is entirely consistent with the Supreme
Court’s totality-of-the-circumstances analysis of such qualified-immunity issues:
the amount of force that a police officer reasonably can use without being
excessive depends on the totality of the circumstances, including “the severity of
the crime at issue, whether the suspect poses an immediate threat to the safety of
the officers or others, and whether he is actively resisting arrest or attempting to
evade arrest by flight.” Graham v. Connor, 490 U.S. 386, 396 (1989).
The district court also properly applied our most pertinent caselaw on the
use of excessive force against handcuffed or unarmed defendants, prior to
concluding that genuine issues of material fact precluded the entry of summary
judgment based on qualified immunity. In Vinyard, we held that an officer was not
entitled to summary judgment based on qualified immunity, even though caselaw
had not previously addressed the particular fact pattern presented, where the officer
maced and bruised a disorderly conduct arrestee, who was handcuffed and cursing
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in the patrol car while being transported to detention. Vinyard, 311 F.3d at 1347-
49, 1355; see also Lee, 284 F.3d at 1198-1200 (concluding that, although the
officer was authorized to use a reasonable amount of force to effectuate the arrest,
the officer’s use of force after the arrest, which included slamming the arrestee’s
head against the trunk after she was subdued and in handcuffs, was clearly
unnecessary and disproportionate); Slicker v. Jackson, 215 F.3d 1225, 1232-33
(11th Cir. 2000) (denying qualified immunity to officers, who slammed a
disorderly conduct arrestee’s head into the pavement and repeatedly kicked him,
“even though he was handcuffed and did not resist, attempt to flee, or struggle with
the officers in any way”).2
Again, at the summary judgment stage, Artiga’s version of the facts must be
accepted as true. Lee v. Ferraro, 284 F.3d at 1190. According to Artiga, after he
was handcuffed and placed in Officer Garcia’s patrol car, the officers ordered him
out of the car, at which point Officer Saladino punched Artiga in his right eye,
causing him to collapse and sink to his knees, and Officer Garcia subsequently
picked him up off the ground and slammed his face into the rear windshield.
2
We are unpersuaded by the officers’ argument that Artiga more closely resembles the
plaintiff in Willingham, in which we concluded that officers, who shot an unarmed woman, were
entitled to qualified immunity because the shots were within a “split-second” of her attempting to
assault and kill the officers. See 321 F.3d at 1303. Artiga, who was handcuffed, maced, and not
resisting arrest at this point, did not present a comparable threat to the threat posed in Willingham.
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Artiga says he then lost consciousness. When he regained consciousness, Officer
Saladino maced Artiga’s injuries, eyes, and mouth and forced him into another
patrol car. On this record, the district court did not err by concluding, in light of
our caselaw, that the officers were not entitled to qualified immunity as to the
excessive-force claim based on the incidents after Artiga was placed in Officer
Garcia’s patrol car. Artiga’s evidence, which must be believed at the summary
judgment stage, would demonstrate a violation of his clearly established rights for
purposes of the qualified immunity analysis. See Vinyard, 311 F.3d at 1347-49,
1355; Lee, 284 F.3d at 1198-1200; Slicker, 215 F.3d at 1232-33.
AFFIRMED.
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