Elvester Goree v. City of Atlanta, Georgia

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED

________________________ U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 1, 2008

No. 07-14350

THOMAS K. KAHN

Non-Argument Calendar

CLERK

________________________

D. C. Docket No. 05-03124-CV-CAP-1

ELVESTER GOREE,

Plaintiff-Appellant,

versus

CITY OF ATLANTA, GA,

RICHARD PENNINGTON,

Individually and in his official capacity

as Chief of Police, Atlanta, Georgia,

OFFICER K. R. KEENEY,

OFFICER KNAPP,

Defendants-Appellees,

ARRESTING OFFICER, et al.,

Defendants.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(May 1, 2008)

Before ANDERSON, BIRCH and DUBINA, Circuit Judges.

PER CURIAM:

Elvester Goree, proceeding pro se, appeals the district court’s grant of the

defendants’ motion for summary judgment in his 42 U.S.C. § 1983 action. In

connection with an altercation that led to his arrest on disorderly conduct charges,

Goree alleged that the City of Atlanta, Georgia, the Chief of Police Richard

Pennington, and Atlanta police officers K.R. Keeney and Kevin Knapp

(collectively “defendants”), violated his Fourth and Fourteenth Amendment rights.1

In addition, Goree alleged numerous state law violations, including false

imprisonment, malicious arrest, malicious prosecution, intentional infliction of

emotional distress, assault, battery, intentional misrepresentation, conspiracy, and

“outrageous conduct.” After thorough consideration, we find Goree’s arguments

to be without merit and accordingly affirm the district court’s grant of summary

judgment.

We review pro se pleadings liberally, holding them to a less stringent

standard than those drafted by attorneys. Hughes v. Lott, 350 F.3d 1157, 1160

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When the plaintiff, like Goree, is a pretrial detainee, claims of cruel and unusual

punishment sound properly in the Fourteenth Amendment right to due process as opposed to the

Eighth Amendment. See Lancaster v. Monroe County, Ala., 116 F.3d 1419, 1425 n.6 (11th Cir.

1997). Because the applicable standard is the same under either provision, we can apply case

law involving prison inmates to cases involving arrestees and pretrial detainees. See Marsh v.

Butler County, Ala., 268 F.3d 1014, 1024 n. 5 (11th Cir. 2001) (en banc).

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(11th Cir. 2003). We review de novo a district court’s grant of summary judgment,

applying the same standards as a district court. Kingsland v. City of Miami, 382

F.3d 1220, 1225 (11th Cir. 2004). Summary judgment is appropriate only if there

are no genuine issues of material fact and the moving party is entitled to judgment

as a matter of law. Miller v. Harget, 458 F.3d 1251, 1255 (11th Cir. 2006), cert.

denied, 127 S. Ct. 2429 (2007). We view all of the evidence and factual inferences

in the light most favorable to the non-moving party and resolve all reasonable

doubts in the non-moving party’s favor. Kingsland, 382 F.3d at 1226. However,

“mere conclusions and unsupported factual allegations are legally insufficient to

defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th

Cir. 2005). Affidavit statements “that are based, in part, upon information and

belief, cannot raise genuine issues of fact, and thus also cannot defeat a motion for

summary judgment.” Id.

On appeal of his Fourth Amendment claim, Goree first argues that the police

officers did not have probable cause to arrest him because they did not interview

any witnesses before arresting him, and, even if they did, there is still a question of

fact regarding what the witnesses told the officers. He argues that the witnesses

and officers are either biased or liars based on: (1) his injuries compared to the

alleged victim’s injuries; (2) the physical characteristics of those involved in the

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altercation; (3) the past convictions of Baldwin, one of the witnesses; and (4) the

fact that the witnesses did not call the police.

A warrantless arrest without probable cause violates the Fourth Amendment

and can form the basis for a § 1983 claim. Rodriguez v. Farrell, 280 F.3d 1341,

1345 (11th Cir. 2002). However, if probable cause existed for an arrest, then the

Fourth Amendment was not violated. Jordan v. Mosley, 487 F.3d 1350, 1355

(11th Cir. 2007).

Probable cause exists when “the facts and circumstances within the officers’

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 commit an offense.” Id. at 1355

(internal quotation and citation omitted). “Probable cause does not require

overwhelmingly convincing evidence, but only reasonably trustworthy

information.” Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir. 1996) (internal

quotation and citation omitted).

We are satisfied that the circumstances, at the time, presented the officers

with probable cause to arrest Goree. We agree with the district court that Goree’s

own inconsistent statements make clear that the officers conducted some type of

investigation at the scene that led them to reasonably believe that Goree had

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instigated the altercation and that his injuries were the result of the putative

victim’s use of defensive force. The district court, therefore, did not err in granting

summary judgment on the Fourth Amendment claim because there was probable

cause to arrest Goree.

Challenging summary judgment on his Fourteenth Amendment claim, Goree

argues that the officers witnessed the extent of his physical injuries, including

blood flowing from his eyes and mouth, limping, and grimaces of pain. He

contends that the officers unnecessarily delayed taking him to the hospital for a

period of one hour and twenty minutes, and he contends that one hour of

unnecessary pain is the same as an hour of torture. He also contends that he should

have been transported by ambulance instead of by police car. He claims that the

officers knew that the possible consequences of his injuries included: (1) his retina

detaching; (2) blood clots; and (3) sprains or hairline fractures. He concludes that

the officers’ actions constituted unnecessary and wanton infliction of pain,

violating his Fourteenth Amendment rights.

To succeed on a § 1983 claim based on the Fourteenth Amendment, a

pretrial detainee must establish: (1) an “objectively serious deprivation,” in other

words, a serious medical need that if left unattended poses a substantial risk of

serious harm; (2) a response by the public official that is so inadequate that it

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constitutes “an unnecessary and wanton infliction of pain;” and (3) an attitude of

deliberate indifference by illustrating that the public official was aware of the facts

from which a substantial risk of serious harm could be inferred and drawing that

inference. Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000).

A medical need is serious when it “has been diagnosed by a physician as

mandating treatment or . . . is so obvious that even a lay person would easily

recognize the necessity for a doctor’s attention.” Farrow v. West, 320 F.3d 1235,

1243 (11th Cir. 2003). “In either case, the medical need must be one that, if left

unattended, poses a substantial risk of serious harm.” Brown v. Johnson, 387 F.3d

1344, 1351 (11th Cir. 2004) (internal quotation and alteration omitted). For

example, we have found that evidence was sufficient to establish a “serious

medical need” where the plaintiff’s leg had collapsed, he was in extreme pain, and

could barely walk. Mandel v. Doe, 888 F.2d 783, 788 (11th Cir. 1989).

However, even if a party demonstrates a “serious medical need,” he still

must establish a “deliberate indifference” toward that need. See Farrow, 320 F.3d

at 1243. “To establish the second element, . . . the prisoner must prove three facts:

(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; and

(3) by conduct that is more than mere negligence.” Johnson, 387 F.3d at 1351.

The Supreme Court had held that “an official’s failure to alleviate a significant risk

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that he should have perceived but did not, while no cause for commendation,

cannot under our cases be condemned as the infliction of punishment.” Farmer v.

Brennan, 511 U.S. 825, 838, 114 S. Ct. 1970, 1979 (1994).

In this case, even assuming that Goree’s injuries constituted serious medical

needs, he has failed to offer any evidence that indicates the defendants treated him

with deliberate indifference so as to constitute wanton infliction of unnecessary

pain. It is undisputed that Goree was able to walk to the officers at the scene and

was ambulatory at the hospital, and therefore Goree has failed to demonstrate how

the officers disregarded a known risk when they transported him by police car,

rather than ambulance, or that they otherwise delayed his receiving treatment with

the requisite culpability. The district court properly granted summary judgment on

Goree’s Fourteenth Amendment claim.2

With regard to Appellant’s state law claims, Goree argues that he established

2

Because we have not found that Goree has pointed to facts that would constitute a

constitutional violation, we have not proceeded with the requisite qualified immunity analysis

that would otherwise protect these officers from liability under section 1983.

To the extent that Goree challenges on appeal the district court’s grant of summary

judgment to the City and Chief Pennington, his arguments fail for want of establishing a genuine

issue of material fact as to the underlying constitutional deprivation. See Rooney v. Watson, 101

F.3d 1378, 1381 (11th Cir. 1996) (“[A]n inquiry into a governmental entity's custom or policy is

relevant only when a constitutional deprivation has occurred.”). Moreover, Goree has also failed

to demonstrate that Chief Pennington had any personal involvement in this matter. See Brown v.

Crawford, 906 F.2d 667, 671 (11th Cir. 1990) (“Supervisory liability occurs either when the

supervisor personally participates in the alleged constitutional violation or when there is a causal

connection between actions of the supervising official and the alleged constitutional

deprivation.”).

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that the defendants acted with malice in arresting him without a warrant. He

claims that the defendants committed the intentional tort of false imprisonment

because there were no exigent circumstances to arrest him without a warrant, and

the Atlanta City Police rulebook informed the officers of the prohibition against

warrantless arrest in the absence of exigent circumstances. He argues that malice

can be inferred from knowledge that conduct is wrong, and the officers knew that

their conduct was wrong. He also alleges that the officers assaulted him by

allowing him to suffer unnecessary pain from his ankle injury. Further, he argues

that Chief Pennington can be held liable for these state law claims as his lack of

discipline constituted tacit approval of such violations.

In Georgia, false imprisonment is the unlawful detention of a person for any

length of time. O.C.G.A. § 51-7-20 (2007). The essential elements of such an

offense are the arrest or detention and the unlawfulness thereof. Arbee v. Collins,

463 S.E.2d 922, 926 (Ga. Ct. App. 1995). “The existence of probable cause

standing alone is not a complete defense in a false imprisonment case because,

even if probable cause to believe a crime has been committed exists, a warrantless

arrest would still be illegal unless it was accomplished pursuant to one of the

‘exigent circumstances’” set out by law. Id. at 926. Exigent circumstances include

if the offense is committed in the presence of the officer or within such officer’s

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immediate knowledge, the offender is trying to escape, or if there is likely to be a

failure of justice absent an immediate arrest. O.C.G.A. § 17-4-20.

In Georgia, official or qualified immunity “protects individual public agents

from personal liability for discretionary actions taken within the scope of their

official authority, and done without wilfulness, malice, or corruption.” Cameron v.

Lang, 549 S.E.2d 341, 344 (Ga. 2001) (internal quotation and citation omitted). A

public officer may be personally liable only for ministerial acts negligently

performed or discretionary acts performed with malice or an intent to injure. Id. at

344. Actual malice “requires a deliberate intention to do wrong.” Merrow v.

Hawkins, 467 S.E.2d 336, 337 (Ga. 1996). Actual intent to cause injury means “an

actual intent to cause harm to the plaintiff.” Kidd v. Coates, 518 S.E.2d 124, 125

(Ga. 1999).

Here, the defendants are entitled to official immunity on the state law claims.

The record does not show any support for Goree’s contentions that the actions of

the defendants demonstrated the requisite malice to overcome official immunity

under state law. Goree’s unsupported allegations of a conspiracy to frame him for

the altercation is insufficient to pierce the protections of official immunity on these

claims.

We find no reason to question the well reasoned decision of the district court

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and accordingly the judgment is

AFFIRMED.3

3

Appellant’s request for oral argument is denied.

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