Alecia Kirby v. L.F. Sherwin

USCA11 Case: 22-11109 Document: 27-1 Date Filed: 03/24/2023 Page: 1 of 17

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-11109

____________________

ALECIA KIRBY,

CARLOS CRUZ,

Plaintiffs-Appellees,

versus

SHERIFF OF CITY OF JACKSONVILLE, FLORIDA, et al.,

Defendants,

L. F. SHERWIN,

Individually and in his official capacity as an officer

with the Jacksonville Sheriff’s Office,

E. M. MEGELA,

Individually and in his official capacity as an officer

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2 Opinion of the Court 22-11109

with the Jacksonville Sheriff’s Office,

Defendants-Appellants.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 3:21-cv-00332-BJD-JBT

____________________

Before LUCK, LAGOA, and TJOFLAT, Circuit Judges.

PER CURIAM:

On May 30, 2020, Plaintiffs Alecia Kirby and Carlos Cruz

(the “Plaintiffs”) were involved in a demonstration in Jacksonville,

Florida, protesting the death of George Floyd in Minneapolis, Min-

nesota, five days earlier. In this case against four officers of the

Jacksonville Sheriff’s Office (the “JSO”), Plaintiffs allege that the of-

ficers, acting pursuant to JSO policy, viciously beat and then falsely

arrested them, both acts done in violation of the Fourth Amend-

ment. 1 The arrest, Plaintiffs allege, was also retaliation for exercis-

ing their First Amendment rights and amounted to common law

1 The Fourth Amendment applies to state and local governments through the

Due Process Clause of the Fourteenth Amendment. See Mapp v. Ohio, 367

U.S. 643, 655, 81 S. Ct. 1684, 1691–92 (1961).

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22-11109 Opinion of the Court 3

battery. 2 Two of the officers, L.F. Sherwin and E.M. Megela (the

“Appellants”), moved the District Court to dismiss these claims on

the ground that they are entitled to qualified immunity. The Court

denied their motions. They now appeal the denial of their motions

with respect to the beating claims. We have jurisdiction of their

appeal under 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S.

511, 530, 105 S. Ct. 2806, 2817 (1985) (“[A] district court’s denial of

a claim of qualified immunity, to the extent that it turns on an issue

of law, is an appealable ‘final decision . . . .’”). We find no error in

the District Court’s rulings and accordingly affirm.

I.

Plaintiffs’ Amended Complaint (the “Complaint”) states

four claims against Appellants and two other officers, Doe #1 and

Doe #2 (collectively the “Officers”). 3 Count 1, brought under 42

2 The First Amendment, like the Fourth, applies to state and local govern-

ments through the Due Process Clause of the Fourteenth Amendment. See

Edwards v. South Carolina, 372 U.S. 229, 235, 83 S. Ct. 680, 683 (1963) (“It has

long been established that these First Amendment freedoms[—free speech,

free assembly, and freedom to petition for redress of grievances—]are pro-

tected by the Fourteenth Amendment from invasion by the States.”).

3 The Appellants appealed the denial of the motion to dismiss Counts 1 and 2

of the Complaint as to them. Counts 1 and 2 of the Complaint as they relate

to the other defendants, as well as Counts 3 and 4 as they relate to all the Of-

ficers, including Officers Sherwin and Megela, remain pending in the District

Court. The Court stayed those proceedings pending resolution of this appeal.

Plaintiffs’ Complaint also stated claims against the Sheriff of the City of Jack-

sonville. He was listed as a defendant to Counts 1, 3, and 4. The Complaint

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4 Opinion of the Court 22-11109

U.S.C. § 1983, alleges that the Officers’ beatings constituted the use

of “excessive force” in violation of the Fourth Amendment. Count

2 alleges that the Officers’ conduct constituted a common law bat-

tery. Count 3, also under § 1983, alleges that the Officers falsely

arrested Plaintiffs in violation of the Fourth Amendment. Count 4

alleges that the Officers arrested them in retaliation of their exer-

cising their First Amendment right to peacefully protest Floyd’s

death.

Appellants moved the District Court to dismiss Counts 1, 2,

and 4 of the Complaint as to them. The District Court denied the

motion. In substance, there is only one issue before this Court on

appeal 4: whether Defendants are entitled to qualified immunity on

the Count 1 claims because Plaintiffs’ Complaint fails to establish

that they were the officers who beat Plaintiffs in violation of the

also alleged a count of Florida common law negligence solely against the Sher-

iff. The Sheriff moved the District Court to dismiss the claims against him.

The District Court granted his motion to dismiss, and those claims are not

before us here.

4 The issue on appeal is quite narrow. Appellants seem to concede that who-

ever beat Plaintiffs, the beating violated Plaintiffs’ clearly established Fourth

Amendment rights. They do not dispute that Plaintiffs state plausible exces-

sive force claims against the Doe defendants; nor do they dispute that Plaintiffs

state plausible § 1983 claims for false arrest and retaliatory arrest against all of

the Officers, including themselves. The sole issue on appeal is whether the

Complaint “state[s] a plausible claim for excessive force against [Officers Sher-

win and Megela] – whether or not the Plaintiffs’ theory is based on a failure to

intervene.” Reply Br. at 1.

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22-11109 Opinion of the Court 5

Fourth Amendment. 5 We examine the allegations of the Com-

plaint with the identity issue in mind. In determining whether the

Complaint plausibly alleges that Appellants beat Plaintiffs in viola-

tion of the Fourth Amendment, we take as true the facts alleged in

the Complaint and construe them in the light most favorable to

Plaintiffs.6 Corbitt v. Vickers, 929 F.3d 1304, 1311 (11th Cir. 2019).

A.

The Complaint alleges that the JSO was on notice that a con-

tingent would be in Jacksonville on May 30, 2020, protesting

Floyd’s death, so the JSO prepared to encounter it. The Office

planned how to deter and prevent the protest, and encouraged its

officers to use force in controlling it.

Plaintiffs Kirby and Cruz participated in the Jacksonville pro-

test. Both Kirby and Cruz acted in a peaceful and lawful manner in

5 In addition to whether the Complaint states a plausible claim of excessive

force against Officers Sherwin and Megela, Appellants have also appealed the

denial of the motion to dismiss the common law battery claims against them

(Count 2). Because in order to allege a plausible common law battery claim

against the Appellants, Plaintiffs needed to plead a plausible excessive force

claim against them, deciding the excessive force issue necessarily decides the

battery issue.

6 We would be remiss if we did not note that regardless of whether the Com-

plaint sufficiently identifies Appellants as the officers who beat Plaintiffs, it is

conceded that the Complaint alleges Plaintiffs were beaten by JSO officers.

Once the Officers answer the Complaint and discovery ensues, Plaintiffs will

be able to seek information to verify the identities of their alleged attackers.

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6 Opinion of the Court 22-11109

exercising their constitutional rights to assemble. At no time did

Plaintiffs commit any acts of violence toward anyone, nor did they

threaten anyone physically, including the Officers.

Plaintiffs, as well as other protestors, were attacked by JSO

officers during the peaceful protest. The JSO officers fired crowd

deterrents, such as tear gas, into the gathering, while a number of

officers blocked off the intersections and potential routes for peace-

ful protestors to vacate.

Plaintiff Kirby had her hands in the air stating, “Hands up,

don’t shoot,” and was attempting to leave the protest area when

she was forcefully taken to the ground by an officer who neither

spoke commands to her nor told her she was being placed under

arrest. Kirby was pinned to the ground and kicked in the face by

an officer, who then deliberately slammed her head into the street

pavement. The officer continued to restrain Kirby with force. As

a result, Kirby suffered a concussion, facial contusions and lacera-

tions, and other injuries.

Similarly, a JSO officer approached Plaintiff Cruz and—with-

out making any statement or command—began to choke him.

Cruz was forcefully taken to the pavement by that officer and suf-

fered a knee injury, contusions, lacerations, and other injuries.

Defendant Sherwin, a JSO patrol officer, arrested Kirby (for

an offense the Complaint does not disclose). Defendant Megela,

also a JSO patrol officer, arrested Cruz (for a similarly undisclosed

offense). Defendants Doe #1 and #2, also JSO patrol officers,

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22-11109 Opinion of the Court 7

participated in the attacks on Kirby and Cruz, respectively. Each

of the Officers, as well as other JSO officers, were in “close proxim-

ity” to the beatings and failed to take any reasonable steps to pro-

tect Plaintiffs from the other defendants’ excessive force.

B.

On March 25, 2021, the Plaintiffs filed suit in the Middle Dis-

trict of Florida. Appellants moved the District Court to dismiss. As

relevant here, the District Court denied Officer Sherwin and Of-

ficer Megela’s claims to qualified immunity for the excessive force

allegations.

Specifically, the Court found that the Complaint alleged that

Defendant “Sherwin and/or Doe #1” used excessive force when

one or both beat Plaintiff Kirby, slammed her head into the street

pavement, and kicked her in the head. Likewise, the Court found

that the Complaint alleged that Defendant “Megela and/or Doe

#2” used excessive force when one or both beat and choked Plain-

tiff Cruz.

The District Court held: “Plaintiffs plausibly alleged facts

demonstrating the absence of violent protests on their part and that

their Fourth Amendment rights to be free from excessive force

were violated. Moreover, this violation was to Plaintiffs’ clearly

established rights.” Order, Doc. 37 at 14. The Court found that

Plaintiffs had plausibly alleged a constitutional violation against

Sherwin, Megela, and the Doe defendants for excessive force. The

Court ultimately stated that it “[could not] find, at this stage, that

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8 Opinion of the Court 22-11109

the level of force used against Plaintiffs was acceptable for any rea-

son.” Id.

Because Plaintiffs plausibly pleaded enough facts to over-

come the Officers’ claim of qualified immunity, the District Court

held that they had also pleaded enough facts to state a claim for

battery under Florida law. Officers Sherwin and Megela timely ap-

pealed.

II.

A district court’s denial of a Rule 12(b)(6) motion to dismiss

based on qualified immunity is a question of law we review de

novo. Corbitt, 929 F.3d at 1311. In ruling on a 12(b)(6) motion,

this Court must accept the factual allegations in the complaint as

true and construe them in the light most favorable to the plaintiff.

Id. The scope of our review must be limited to the four corners of

the complaint, and the burden of persuasion is on the plaintiff. Id.

A defendant can assert the defense of qualified immunity at

various stages, including, as here, in a pretrial motion to dismiss for

failure to state a claim under Rule 12(b)(6). Skrtich v. Thornton,

280 F.3d 1295, 1306 (11th Cir. 2002). But “[w]here it is not evident

from the allegations of the complaint alone that the defendants are

entitled to qualified immunity, the case will proceed to the sum-

mary judgment stage,” which is “the most typical juncture at which

defendants entitled to qualified immunity are released from the

threat of liability and the burden of further litigation.” Johnson v.

Breeden, 280 F.3d 1308, 1317 (11th Cir. 2002), abrogated on other

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22-11109 Opinion of the Court 9

grounds by Kingsley v. Hendrickson, 576 U.S. 389, 395, 135 S. Ct.

2466, 2472 (2015).

Qualified immunity shields “government officials perform-

ing discretionary functions . . . from liability for civil damages inso-

far as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.”7 Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727,

2738 (1982). The Supreme Court has established a two-part test for

evaluating a claim of qualified immunity. We must ask (1)

whether, taken in the light most favorable to the injured party, the

facts alleged show the officer’s conduct violated a constitutional

right; and (2) if the right violated under those alleged facts was

clearly established at the time of the alleged violation. Saucier v.

Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001). 8

A.

The first issue before us, then, is whether the facts alleged in

Plaintiffs’ Complaint show the Appellants’ conduct violated their

7 It is undisputed in this appeal that the Officers were government officials

performing discretionary functions.

8 While Saucier mandated that district courts and courts of appeals handle

those steps in order in every case, that is no longer the case. Courts have dis-

cretion to consider these two questions in which ever order they find appro-

priate in light of the particular case. See Pearson v. Callahan, 555 U.S. 223,

236, 129 S. Ct. 808, 818 (2009). To overcome a claim of qualified immunity,

both questions must be answered affirmatively. If the answer to one is “no,”

the court need not reach the other.

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10 Opinion of the Court 22-11109

constitutional rights. 9 This requires “a short and plain statement

of the claim showing that the pleader is entitled to relief.” Fed. R.

Civ. P. 8(a)(2). The Rule 8 pleading standard “does not require ‘de-

tailed factual allegations,’ but it demands more than an unadorned,

the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iq-

bal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 127 S. Ct. 1955, 1964 (2007)).

To survive a motion to dismiss, a complaint must plead facts suffi-

cient to “state a claim for relief that is plausible on its face,” or

enough facts to “nudge a plaintiff’s claims across the line from con-

ceivable to plausible.” Holland v. Carnival Corp., 50 F.4th 1088,

1093 (11th Cir. 2022) (quoting Twombly, 50 U.S. at 570, 127 S. Ct.

at 1974) (alterations adopted).

A claim “has facial plausibility when the plaintiff pleads fac-

tual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Iqbal, 556

U.S. at 678, 129 S. Ct. at 1949. “The plausibility standard is not akin

to a probability requirement, but it asks for more than a sheer pos-

sibility that a defendant has acted unlawfully.” Id. (internal

9 This case is somewhat out of the ordinary because the dispute in many qual-

ified immunity excessive force cases centers on whether the force that was

used violated the plaintiff’s constitutional rights—that is, whether the use of

force was objectively reasonable. This case, however, presents more of a Rule

8 pleading issue, because the argument is not that Plaintiffs did not allege a

constitutional violation. Appellants admit that someone violated Plaintiffs’

constitutional rights. They argue that the Complaint did not allege that the

Appellants committed the constitutional violation.

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quotation marks omitted). “This analysis is not formulaic; instead

‘determining whether a complaint states a plausible claim for relief

is a context-specific task that requires the reviewing court to draw

on its judicial experience and common sense.’” Newbauer v. Car-

nival Corp., 26 F.4th 931, 934 (11th Cir. 2022) (quoting Iqbal, 556

U.S. at 679, 129 S. Ct. at 1950) (alterations adopted).

According to the Appellants, the only claim reasonably al-

leged against them would be a failure to intervene claim. Even in

that context, they argue that the Complaint fails to show they had

a realistic opportunity to prevent the illegal conduct and were in a

position to intervene. But neither the Plaintiffs in their Complaint

nor the District Court in its Order relied on a failure to intervene

theory. The Complaint alleged—plausibly so, according to the Dis-

trict Court—excessive force in violation of the Fourth Amend-

ment.

The Fourth Amendment protects “[t]he right of the people

to be secure in their persons . . . against unreasonable searches and

seizures.” U.S. Const. amend. IV. All claims that law enforcement

officers used excessive force while making an arrest are analyzed

under the Fourth Amendment’s reasonableness standard. Graham

v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 1871 (1989). This

requires balancing “‘the nature and quality of the intrusion on the

individual’s Fourth Amendment interests’ against the govern-

ment’s interest in safely apprehending the suspect.” Stryker v. City

of Homewood, 978 F.3d 769, 773 (11th Cir. 2020) (quoting Gra-

ham, 490 U.S. at 396, 109 S. Ct. at 1871). Balancing those interests

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12 Opinion of the Court 22-11109

necessitates “careful attention to the facts and circumstances of

each particular case,” and focuses on: (1) the severity of the crime

at issue; (2) whether the suspect poses an immediate threat to the

safety of the officers or others; and (3) whether the suspect is ac-

tively resisting arrest or attempting to evade arrest by flight. Gra-

ham, 490 U.S. at 396, 109 S. Ct. at 1872.

Detailed analysis of the Graham factors is not warranted

here because the Appellants concede that someone violated Plain-

tiffs’ constitutional rights. Their argument is that the Complaint

does not sufficiently allege that it was them. Our reading of the

Complaint, taken in the light most favorable to the Plaintiffs, shows

the following alleged facts: (1) Sheriff Williams was aware of the

protest and encouraged JSO officers to be physical with the protes-

tors; (2) Plaintiffs Kirby and Cruz were peacefully protesting and

were at no time violent or threatening; (3) Plaintiffs Kirby and Cruz

were beaten and brought to the ground; (4) the Appellants were in

close proximity to the beating; (5) the Appellants arrested Kirby

and Cruz; and (6) the Appellants and/or unknown officers commit-

ted the violence. These facts, taken together, allow the inference

that Appellants were the officers who seized Plaintiffs. Under Rule

8, this is enough to plausibly allege that Appellants contributed to

or participated in the violence, which they concede was a violation

of the Plaintiffs’ constitutional rights. 10 See Velazquez v. City of

10 If the Plaintiffs had alleged more than this, they may have run afoul of Fed-

eral Rule of Civil Procedure 11, which states that in presenting a pleading to

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Hialeah, 484 F.3d 1340, 1342 (11th Cir. 2007) (holding that evidence

that a plaintiff was beaten and that two defendant officers were in

close proximity to the beating would “permit[] the jury, if it be-

lieves that [the plaintiff] was beaten, to find that both of the officers

administered the excessive force”).

B.

Because Plaintiffs’ Complaint sufficiently alleges that the Ap-

pellants violated their constitutional rights, we must also decide

whether, at the time of the May 30, 2020 protest, those rights were

clearly established. A clearly established right is one that is “suffi-

ciently clear that every reasonable official would have understood

that what he is doing violates that right.” Mullenix v. Luna, 577

U.S. 7, 11, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting Reichle

v. Howards, 566 U.S. 658, 664, 132 S. Ct. 2088, 2093 (2012)). Plain-

tiffs can show that a constitutional right was clearly established in

three ways: (1) citing case law with indistinguishable facts that

clearly establishes the constitutional right; (2) pointing to a broad

statement of principle within the Constitution, statute, or case law

that clearly establishes the constitutional right; or (3) alleging con-

duct so egregious that a constitutional right was clearly violated,

even in the total absence of case law. Lewis v. City of W. Palm

Beach, 561 F.3d 1288, 1291–92 (11th Cir. 2009) (citing Mercado v.

City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005)).

the court, an attorney represents that “the factual contentions have eviden-

tiary support.” Fed. R. Civ. P. 11(b)(3).

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14 Opinion of the Court 22-11109

The Appellants frame the issue as whether, on May 30, 2020,

“the law in the Eleventh Circuit clearly established that an officer

uses excessive force by simply being in the ‘proximity’ of an indi-

vidual who is the victim of an unknown officer’s alleged excessive

force.” Appellants’ Br. at 18–19. But that is not what the Plaintiffs

alleged, and it is not what the District Court decided. The District

Court found, and we agree, that the Complaint plausibly alleges

that the Appellants themselves participated in the excessive force,

as well as in Plaintiffs’ arrest, not that they were merely in close

proximity to the excessive force and failed to do anything about it.

The question, then, is whether in these circumstances

clearly established law prohibited the force Appellants allegedly

used on Plaintiffs Kirby and Cruz. The answer to that question is

yes. See Stephens v. DeGiovanni, 852 F.3d 1298, 1328 n.33 (11th

Cir. 2017) (concluding that the law is clearly established that offic-

ers can’t use “gratuitous force” on a “non-resisting” suspect “when

the excessive force is applied prior to the handcuffing [] in the

course of the investigation and arrest”); Patel v. City of Madison,

959 F.3d 1330, 1340 (11th Cir. 2020) (same).

Because the Complaint plausibly alleges that the Appellants

violated Plaintiffs’ Fourth Amendment constitutional right to be

protected from excessive force, and because that right was clearly

established at the time of the May 30, 2020 protest, Appellants are

not entitled to qualified immunity on the excessive force claims at

this stage.

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IV.

Finally, the Appellants also appealed the denial of their mo-

tion to dismiss Count 2 as to them, arguing that the Complaint

failed to state a claim against them for common law battery.

A.

As an initial matter, we must address the issue of appellate

jurisdiction. Federal courts have an independent obligation to ex-

amine sua sponte their own jurisdiction over a case. DeRoy v. Car-

nival Corp., 963 F.3d 1302, 1311 (11th Cir. 2020). This Court’s ju-

risdiction is limited to “appeals from all final decisions of the district

courts of the United States.” 28 U.S.C. § 1291. Typically the denial

of a motion to dismiss is not considered a final order.

The Supreme Court created an exception to that general

rule when qualified immunity was implicated. See Mitchell, 472

U.S. at 530, 105 S. Ct. at 2817. For that reason, we have appellate

jurisdiction over the District Court’s denial of the motion to dis-

miss Count 1. The same cannot be said regarding denial of the

motion to dismiss Count 2—the state-law battery claim. See An-

dreu v. Sapp, 919 F.2d 637, 640 (11th Cir. 1990) (“Qualified immun-

ity is a defense to federal causes of action and does not protect offi-

cials from claims based upon state law.”).

However, “[a]n appeal from the denial of qualified immun-

ity may implicate this Court’s discretionary pendent appellate ju-

risdiction.” Smith v. LePage, 834 F.3d 1285, 1292 (11th Cir. 2016).

Under our pendent appellate jurisdiction, “we may address

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16 Opinion of the Court 22-11109

otherwise nonappealable orders if they are inextricably intertwined

with an appealable decision.” Jackson v. Humphrey, 776 F.3d 1232,

1239 (11th Cir. 2015) (quotation omitted) (alteration adopted).

“Matters may be sufficiently intertwined where they ‘implicate the

same facts and the same law.’” Smith, 834 F.3d at 1292 (quoting

Jackson, 776 F.3d at 1239) (alterations adopted).

We choose to exercise pendent appellate jurisdiction over

the denial of the motion to dismiss the battery claims as to the Ap-

pellants. The resolution of the battery claims is “inextricably inter-

twined” with the resolution of the excessive force claims. As both

parties agree, if the Complaint plausibly states a claim of excessive

force against Appellant, it necessarily plausibly states a claim of

common law battery under Florida law.

B.

Turning to the merits, battery has two elements under Flor-

ida law: (1) intent to cause a harmful or offensive contact; and (2) a

resulting offensive contact with the person of another. Baxter v.

Roberts, 54 F.4th 1241, 1272 (11th Cir. 2022) (quoting City of Mi-

ami v. Sanders, 672 So. 2d 46, 47 (Fla. 3d Dist. Ct. App. 1996)). Un-

der Florida law, a battery claim for excessive force in the arrest con-

text is analyzed by focusing on whether the amount of force was

reasonable under the circumstances. Id. at 1272–73. “If excessive

force is used in an arrest, the ordinarily protected use of force by a

police officer is transformed into a battery.” Id. at 1273 (quoting

Sanders, 672 So. 2d at 47).

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22-11109 Opinion of the Court 17

Because Plaintiffs plausibly pleaded a claim of excessive

force in violation of the Fourth Amendment against the Officers,

they have necessarily met the standard for pleading a common law

battery claim against them as well.

V.

Plaintiffs sufficiently stated plausible claims of excessive

force under 42 U.S.C. § 1983 and common law battery against the

Appellants, and the Appellants are not entitled to qualified immun-

ity at this stage of the proceeding. 11 The District Court’s order is

therefore

AFFIRMED.

11 We say nothing as to the strength of the allegations against the Appellants,

nor as to what will happen at future stages of the proceeding. We only hold

that Plaintiffs have plausibly stated excessive force and battery claims against

Appellants, and that Appellants are not entitled to qualified immunity on the

excessive force claim at this stage in the proceeding.