Robert Dale Harris v. Kasey P. Wingo

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-10905

Non-Argument Calendar

____________________

ROBERT DALE HARRIS,

Plaintiff-Appellant,

versus

KASEY P. WINGO,

individually,

MICHAEL D. CHAPMAN,

individually,

Defendants-Appellees.

____________________

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2 Opinion of the Court 22-10905

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 2:18-cv-00017-JES-MRM

____________________

Before JORDAN, JILL PRYOR, and BRANCH, Circuit Judges.

PER CURIAM:

After appellant Robert Harris was arrested, he sued several

of the deputies from the Collier County Sheriff’s Office who were

involved in his arrest, including Michael Chapman, Kasey Wingo,

and Scott Pepin, in federal district court, bringing a variety of

claims under 42 U.S.C. § 1983 and state law. The district court

granted summary judgment to the deputies on several of Harris’s

claims, including the § 1983 claim alleging that Chapman and

Wingo conspired to violate Harris’s civil rights and all of Harris’s

claims against Pepin. Harris’s remaining claims against Chapman

and Wingo were tried to a jury, which returned a verdict in the

deputies’ favor.

On appeal, Harris argues that the district court erred when

it (1) denied his motion in limine to bar Chapman and Wingo from

introducing evidence at trial showing that they had arguable prob-

able cause to arrest Harris; (2) granted summary judgment to

Chapman and Wingo on Harris’s § 1983 conspiracy claim; and

(3) granted summary judgment to Pepin on all the claims against

him. After careful consideration, we affirm.

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22-10905 Opinion of the Court 3

I.

On April 4, 2014, Harris spent most of the day at a local stor-

age facility, helping a friend who rented a unit at the facility to re-

pair a motorcycle. 1 Harris left the storage facility around 9:30 pm,

which was after the facility closed to the public as well as to those

who rented storage units. Chapman, who was patrolling in the

area, saw Harris exiting the storage facility on a bicycle and stopped

him. Chapman was suspicious because there had been a number of

burglaries in the area, and Harris was leaving the closed storage

facility with a backpack. During the stop, Chapman was joined by

Wingo and later Pepin. According to the deputies, they arrested

Harris because he failed to comply with orders to get off his bicycle

and to provide his name and date of birth upon request. Ultimately,

Harris was charged with obstruction, battery on a law enforcement

officer, aggravated assault on a law enforcement officer, resisting

arrest with violence, and loitering and prowling. The prosecutor

later dropped all the charges.

In January 2018, Harris filed his original complaint in this

case against Chapman and Wingo. He alleged that during the April

2014 incident the deputies arrested him without arguable probable

cause and severely beat him. He brought claims against Chapman

and Wingo under 42 U.S.C. § 1983 for false arrest, excessive force,

1 Because we write only for the parties, who are already familiar with the facts

and proceedings in the case, we include only what is necessary to explain our

decision.

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4 Opinion of the Court 22-10905

malicious prosecution, and retaliation. He also brought a § 1983

claim alleging that the deputies conspired to violate his civil rights.

With regard to the conspiracy claim, Harris stated that about a

month before the April 2014 incident, he had complained about

Chapman to Chapman’s supervisor. Harris alleged that Chapman

and Wingo arrested and beat him in April 2014 to “intimidate, har-

ass, and teach [him] a lesson about reporting [Chapman’s] miscon-

duct.” Doc. 1 at 53. 2 The complaint also included state law claims

against Chapman and Wingo.

About four months later, on May 2, 2018, Harris filed an

amended complaint. In the amended complaint, Harris continued

to assert the same claims against Chapman and Wingo. He also

added claims against Pepin. The amended complaint included

§ 1983 claims against Pepin for false arrest, excessive force, mali-

cious prosecution, and retaliation. The amended complaint also in-

cluded state law claims against Pepin.

After the parties completed discovery, the deputies filed

summary judgment motions. We begin with Chapman’s and

Wingo’s summary judgment motions. They sought summary

judgment on the § 1983 claims for false arrest, malicious prosecu-

tion, and retaliation, arguing that they were entitled to qualified

immunity because they had arguable probable cause to arrest Har-

ris. And they sought summary judgment on Harris’s § 1983 civil

conspiracy claim based on the intracorporate conspiracy doctrine,

2 “Doc.” numbers refer to the district court’s docket entries.

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which generally bars conspiracy claims against government actors

who are accused of colluding with others within the same organi-

zation.

Pepin filed his own motion for summary judgment, arguing

that Harris’s claims against him arising out of the April 2014 inci-

dent were time-barred. He explained that a four-year statute of lim-

itations applied to all of Harris’s claims. Because Harris’s amended

complaint, which added Pepin as a defendant, was filed more than

four years after the limitations began to run, Pepin argued that he

was entitled to summary judgment.3

In a series of orders, the district court disposed of the sum-

mary judgment motions. It granted in part and denied in part Chap-

man and Wingo’s motions for summary judgment. The district

court ruled that at the summary judgment stage Chapman and

3 In the amended complaint, Harris alleged that Pepin also engaged in uncon-

stitutional retaliation on June 10, 2014, when he issued Harris a warning for

trespassing at a Dunkin’ Donuts. Pepin sought summary judgment on this

claim, arguing that there was no evidence that he was motivated by a retalia-

tory purpose when he issued the warning. The district court agreed with Pepin

and granted him granted summary judgment on this claim.

Harris appears to argue on appeal that his retaliation claim challenging the

June 2014 incident was timely, but he raises no argument in his opening brief

on appeal challenging the district court’s ruling that Pepin was entitled to sum-

mary judgment because there was no evidence he acted with a retaliatory pur-

pose when he issued the trespass warning. Harris thus has forfeited any chal-

lenge to this portion of the district court’s summary judgment order. See

United States v. Campbell, 26 F.4th 860, 873 (11th Cir. 2022) (en banc) (recog-

nizing that an issue not raised on appeal is deemed forfeited).

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6 Opinion of the Court 22-10905

Wingo were not entitled to qualified immunity on the § 1983

claims for false arrest, malicious prosecution, and retaliation be-

cause when the evidence was viewed in the light most favorable to

Harris, the deputies lacked arguable probable cause to arrest Har-

ris.

But the district court granted summary judgment to Chap-

man and Wingo on the § 1983 civil conspiracy claim. The district

court concluded that the intracorporate immunity doctrine barred

this claim. The court acknowledged that there was “an exception

to the doctrine when the alleged conduct of the conspirators vio-

lates the federal criminal code.” Doc. 173 at 31. But the court found

that this exception did not apply because Harris had “not alleged or

otherwise established that the defendants engaged in conduct that

violated the federal criminal code.” Id. at 32.

The district court also granted Pepin’s summary judgment

motion. It concluded that Harris’s claims against Pepin were un-

timely because he had waited more than four years from when the

claims accrued to file suit. The court acknowledged that if Harris’s

amended complaint related back to his original complaint, then the

claims would have been timely. But the district court found that as

to the claims against Pepin, the amended complaint did not relate

back to the original complaint.

Chapman and Wingo filed an interlocutory appeal, challeng-

ing the district court’s summary judgment order that denied quali-

fied immunity on the § 1983 false arrest, malicious prosecution, and

retaliation claims. We affirmed the district court’s denial of

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qualified immunity. See Harris v. Wingo (Harris I), 845 F. App’x

892 (11th Cir. 2021) (unpublished). We explained that because the

case was at the summary judgment stage, we had to “[v]iew[] the

facts in the light most favorable to Harris.” Id. at 892. And after

viewing the evidence in the light most favorable to Harris, we con-

cluded that the deputies lacked arguable probable cause to arrest

Harris. See id. at 895–96. But we cautioned that “the facts, as ac-

cepted at the summary judgment stage of the proceedings, may not

be the actual facts of the case.” Id. at 893 n.3 (internal quotation

marks omitted).

After we issued our decision in Harris I, the case returned to

the district court. The claims that remained for trial included the

§ 1983 claims against Chapman and Wingo for false arrest, exces-

sive force, malicious prosecution, and retaliation.

Before trial, Harris filed a motion in limine to prevent Chap-

man and Wingo from introducing evidence at trial showing that

they had arguable probable cause to arrest Harris. Harris argued

that the decision in Harris I meant it was now the law of the case

that Chapman and Wingo lacked arguable probable cause for the

arrest. Harris asserted that only damages issued remained for trial.

The district court denied the motion. It explained that in

Harris I we had viewed the evidence “in the light most favorable

to” Harris and then concluded that the officers lacked arguable

probable cause to arrest Harris and were not entitled to qualified

immunity. Doc. 247 at 4–5. The district court explained that noth-

ing in the Harris I decision barred Chapman and Wingo from

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8 Opinion of the Court 22-10905

introducing evidence at trial showing that they had arguable prob-

able cause to arrest Harris.

The case proceeded to a jury trial, which lasted four days. At

the conclusion of the trial, the jury found that Harris failed to prove

any of his claims by a preponderance of the evidence and returned

a verdict in favor of Chapman and Wingo.

After the trial, Harris filed a motion for a new trial under

Federal Rule of Civil Procedure 59, again arguing that the district

court should not have allowed Chapman and Wingo to introduce

evidence showing they had arguable probable cause to arrest Har-

ris. The district court denied this motion, explaining that the “de-

nial of summary judgment on a claim of qualified immunity does

not establish liability for the underlying conduct.” Doc. 268 at 4.

This is Harris’s appeal.

II.

There are several standards of review applicable to this ap-

peal. We review the district court’s denial of a motion for limine

for abuse of discretion. See Mercado v. City of Orlando, 407 F.3d

1152, 1156 (11th Cir. 2005). Under the abuse-of-discretion standard,

we may reverse a district court’s decision only if the court “applies

an incorrect legal standard, follows improper procedures in making

the determination, or makes findings of fact that are clearly erro-

neous.” Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1096 (11th

Cir. 2004) (internal quotation marks omitted).

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“We review de novo the district court’s grant of summary

judgment, construing the facts and drawing all reasonable infer-

ences in favor of the nonmoving party.” Smelter v. S. Home Care

Servs., Inc., 904 F.3d 1276, 1284 (11th Cir. 2018). Summary judg-

ment is appropriate if the record gives rise to “no genuine dispute

as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material

fact exists when “the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).

In addition, we review de novo a district court’s application

of the law of the case doctrine, including the mandate rule. See Cox

Enters., Inc. v. News-Journal Corp., 794 F.3d 1259, 1272 (11th Cir.

2015). And we review de novo issues regarding the application of

the statute of limitations. See Harrison v. Digit. Health Plan,

183 F.3d 1235, 1238 (11th Cir. 1999).

III.

Harris raises three issues on appeal. He argues that the dis-

trict court erred by (1) allowing Chapman and Wingo to present

evidence at trial that they had arguable probable cause to arrest

him; (2) granting summary judgment to Chapman and Wingo on

the § 1983 conspiracy claim; and (3) granting summary judgment

to Pepin. We address each issue in turn.

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A.

We begin with Harris’s argument that the district court

erred in denying his motion in limine. He says that in Harris I, this

Court, in considering whether there was arguable probable cause

for his arrest, “found” that he did not refuse to provide Chapman

or Wingo with his name or date of birth. Appellant’s Br. at 21.

Given these findings and our Court’s mandate rule, Harris argues,

the district court erred in denying his motion in limine and allow-

ing Chapman and Wingo to introduce evidence showing that Har-

ris refused to provide his name and date of birth. We disagree.

The law of the case doctrine generally operates to preclude

a trial court from revisiting issues that were decided explicitly or by

necessarily implication in a prior appeal. See Norelus v. Denny’s,

Inc., 628 F.3d 1270, 1288 (11th Cir. 2010). “The mandate rule is a

specific application of the law of the case doctrine.” Id. (internal

quotation marks omitted). Under the mandate rule, a district court,

“upon receiving the mandate of an appellate court, may not alter,

amend, or examine the mandate, or give any further relief or re-

view, but must enter an order in strict compliance with the man-

date.” Id. (internal quotation marks omitted).

Harris’s argument that the district court violated the man-

date rule rests on the assumption that in Harris I we resolved fac-

tual questions related to the existence of arguable probable cause,

including whether Harris refused to provide his full name or date

of birth. We did not. Harris’s argument misunderstands the role of

appellate courts, which do not resolve disputed issues of fact. It is

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well established that “[f]actfinding is the basic responsibility of dis-

trict courts, rather than appellate courts.” Pullman-Standard v.

Swint, 456 U.S. 273, 291 (1982) (internal quotation marks omitted);

see Norelus, 628 F.3d at 1289 (stating the “factfinding function . . .

belongs . . . in the district court, not in this Court”).

Furthermore, the substance of our decision in Harris I shows

that we made no factual findings. When we issued our decision in

Harris I, the case was at the summary judgment stage. Given this

procedural posture, we “[v]iew[ed] the facts in the light most fa-

vorable to” Harris. See Harris I, 845 F. App’x at 892. And it was

because we viewed the facts in the light most favorable to Harris

that we said Harris did not refuse to provide his name and birthdate

to Chapman and Wingo. But we never purported to resolve this

disputed factual question. Indeed, in our decision we cautioned the

parties that “the facts, as accepted at the summary judgment stage

of the proceedings, may not be the actual facts of the case.” Id. at

893 n.3 (internal quotation marks omitted).

Because nothing in our decision in Harris I decided any fac-

tual question, the district court did not violate the mandate rule

when it denied Harris’s motion in limine and allowed Chapman

and Wingo to introduce evidence to show that Harris refused to

provide his full name or date of birth. 4

4 For the first time in his reply brief, Harris suggests that even if he refused to

provide his name and birthdate, Chapman and Wingo lacked arguable

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B.

We now turn to Harris’s argument that the district court

erred in granting summary judgment to Chapman and Wingo on

his § 1983 claim alleging that they conspired to violate his constitu-

tional rights. We agree with the district court that this claim is

barred by the intracorporate conspiracy doctrine.

A plaintiff has a § 1983 claim for conspiracy to violate consti-

tutional rights when he shows “a conspiracy existed that resulted

in the actual denial of some underlying constitutional right.”

Grider v. City of Auburn, 618 F.3d 1240, 1260 (11th Cir. 2010).

Among other things, the plaintiff “must prove the defendants

reached an understanding to violate [his] constitutional rights.” Id.

(internal quotation marks omitted).

Harris’s § 1983 conspiracy claim against Chapman and

Wingo fails because of the intracorporate conspiracy doctrine. For

a conspiracy to be formed, there must be an agreement among

multiple actors. See id. at 1261. But when an agency’s employees

act within the scope of their employment, their actions are at-

tributed to the agency itself. Id. Under the doctrine, an agency’s

employees, “when acting in the scope of their employment, cannot

probable cause to arrest him. But this argument that the evidence at trial was

insufficient to establish that the deputies had arguable probable cause to arrest

Harris “come[s] too late”; we do not address issues raised by an appellant for

the first time in a reply brief. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d

678, 683 (11th Cir. 2014).

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conspire among themselves.” See id. (explaining that actions of the

employees are attributed to the agent itself “thereby negating the

multiplicity of actors necessary for the formation of a conspiracy”

(internal quotation marks omitted)). Here, because all the deputies

were acting within the scope of their employment with the Collier

County Sheriff’s Office, 5 the intracorporate conspiracy doctrine

barred Harris’s § 1983 conspiracy claim.

Harris nevertheless argues that an exception to the intracor-

porate conspiracy doctrine applies. We have previously recognized

an exception when there is “evidence of conduct constituting a

criminal conspiracy in violation of the federal criminal code.” Id. at

1263 (emphasis added). Although Harris alleged a conspiracy ex-

isted, he has come forward with no evidence of conduct constitut-

ing a criminal conspiracy in violation of the federal criminal code.

In the absence of such evidence, we affirm the district court’s order

granting summary judgment to Chapman and Wingo on the

§ 1983 conspiracy claim.

5 Harris does not dispute that the deputies were acting within the scope of

their employment. See Grider, 618 F.3d at 1261 (“The scope-of-employment

inquiry is whether the employee police officer was performing a function that,

but for the alleged constitutional infirmity, was within the ambit of the of-

ficer’s scope of authority (i.e., job-related duties) and in furtherance of the em-

ployer’s business.”).

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C.

We next consider Harris’s argument that the district court

erred in granting summary judgment to Pepin based on the statute

of limitations. We conclude that the district court did not err.

We agree with the district court that Harris’s claims against

Pepin were time-barred. Indeed, Harris does not dispute that appli-

cable limitations period was four years and that he waited more

than four years after the claims accrued to sue Pepin. 6

Harris nevertheless argues that his claims against Pepin

were timely because the claims against Pepin in the amended com-

plaint related back to the original complaint, which was filed within

the four-year limitations period.

To determine whether the amended complaint related back

to the original complaint, we look to Rule 15(c)(1) of the Federal

Rules of Civil Procedure. See Makro Cap. of Am. v. UBS AG,

543 F.3d 1254, 1258 (11th Cir. 2008). Under Rule 15(c)(1), “[a]n

amendment to a pleading relates back to the date of the original

6 On appeal, Harris argues that his § 1983 civil conspiracy claim against Pepin

was timely because he filed suit within four years of when this limitations pe-

riod began to run. But Harris overlooks that he never brought a § 1983 civil

conspiracy claim against Pepin. The amended complaint included one count

alleging a § 1983 civil conspiracy claim and that count (Count XII) was brought

against only Chapman and Wingo.

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pleading when . . . the law that provides the applicable statute of

limitations allows relation back.” Fed. R. Civ. P. 15(c)(1)(A). 7

On appeal, Harris argues that the amended complaint add-

ing the claims against Pepin related back to the original complaint

because Florida law, which supplies the applicable statute of limi-

tations, would allow the relation back. We disagree.

Florida8 recognizes a “judicial policy of freely permitting

amendments to the pleadings” and usually allows for the relation

back of pleadings. See Caduceus Props., LLC v. Graney, 137 So. 3d

7 Rule 15(c)(1)(C) also provides that an amendment that adds a new party re-

lates back when the amendment asserts a claim or defense that arose out of

the conduct, transaction, or occurrence set out in the original pleading, the

party to be brought in by amendment received notice of the action within the

period for serving the summons and complaint, and the party to be brought

in by the amendment “knew or should have known that the action would have

been brought against [him], but for a mistake concerning the proper party’s

identity.” Fed. R. Civ. P. 15(c)(1)(C).

Harris has forfeited any argument that the pleading relates back under Rule

15(c)(1)(C) because he did not raise this issue in his opening brief. Although

Harris tried to argue in his reply brief that the amended complaint related back

under Rule 15(c)(1)(C) that argument comes “too late.” Sapuppo, 739 F.3d at

683. Even assuming that Harris did not forfeit the issue of whether the

amended complaint related back under Rule 15(c)(1)(C), we cannot say that

the amended complaint related back under this provision. There is no evi-

dence that Pepin knew or should have known that the action would have been

brought against him but for a mistake concerning his identity.

8 Both Harris and Pepin agree that Florida law supplies the relevant statute of

limitations.

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987, 991–92 (Fla. 2014). But the relation-back doctrine generally

does not apply when “an amendment seeks to bring in an entirely

new party defendant to the suit after the statute of limitations pe-

riod had expired.” Id. at 993–94.

Florida courts will treat an amended pleading adding a new

defendant as relating back only when the new defendant named

has a “sufficient identity of interest” with an existing defendant

such that “the new defendant is essentially one in the same as the

existing defendant.” Russ v. Williams, 159 So. 3d 408, 410–11 (Fla.

Dist. Ct. App. 2015) (internal quotation marks omitted). An amend-

ment will not relate back simply because the new defendant has a

close relationship with a defendant named in the original complaint

and knew of the lawsuit during the limitations period. See id. (hold-

ing that amended complaint, which added claim against wife, did

not relate back to original complaint, which named husband alone

as defendant, in suit arising out of an automobile accident even

though wife was aware of original complaint before limitations pe-

riod expired). Indeed, Florida courts have treated amendments

adding new parties as relating back only when the amendment “in-

volved the substitution of one corporate entity for another or

merely changed the capacity in which a defendant has been sued.”

Id. at 410–11 (citations omitted).

Here, we conclude that Florida law would not allow the re-

lation back. As we mentioned above, Florida generally does not

treat an amendment that adds a new party after the limitations pe-

riod expired as relating back to the original complaint. See

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Caduceus Props, 137 So. 3d at 993–94. And we cannot say that the

exception to this general rule applies because there was no evi-

dence that Pepin was essentially the same as any of the defendants

named in the original complaint. See Russ, 159 So. 3d at 410–11.

Because Harris’s claims against Pepin were untimely, we affirm the

district court’s order granting Pepin’s motion for summary judg-

ment.

IV.

For the above reasons, we affirm the district court’s judg-

ment.

AFFIRMED.