Kevin Lamar Blake v. Andrew E. Bryant

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13070

Non-Argument Calendar

____________________

KEVIN LAMAR BLAKE,

Plaintiff-Appellant,

versus

ORANGE COUNTY SHERIFF'S OFFICE,

Police Department, individual capacity,

et al.,

Defendants,

ANDREW E. BRYANT,

Deputy Sheriff, individual capacity,

JORDAN M. DZIENDZIEL,

Detective, individual capacity,

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2 Opinion of the Court 21-13070

BRIAN P. SAVELLI,

Detective, individual capacity,

JULIE DEJESUS,

Deputy First Class, individual capacity,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 6:19-cv-00494-GKS-EJK

____________________

Before JILL PRYOR, GRANT, and ANDERSON, Circuit Judges.

PER CURIAM:

Kevin Blake, proceeding pro se, appeals an order granting

summary judgment to four officers of the Orange County Sheriff’s

Office. The district court awarded the officers qualified immunity

from Blake’s excessive force claims because it held that the force

used in restraining and moving him after an interrogation was

objectively reasonable. Blake’s appeal, liberally construed, argues

that qualified immunity was inappropriate because the defendants

were not acting within their discretionary authority; that the force

they used was not objectively reasonable and violated his Fourth

Amendment rights; and that the law on that point was clearly

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21-13070 Opinion of the Court 3

established at the time of his incident. We disagree with Blake and

affirm the district court.

I.

We interpret pro se complaints liberally and construe factual

inferences in favor of the non-movant at the summary judgment

stage. See Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990).

Blake brought this § 1983 suit against five Orange County police

officers, but on appeal only three remain relevant: Detective

Dziendziel, Detective Savelli, and Deputy Sheriff Bryant. 1

Blake was detained as a suspect in the armed robbery of a

pizza delivery driver. After being transported to the station, he was

placed in an interview room, where Dziendziel and Bryant tried to

question him. Bryant read Blake his Miranda rights at the

beginning of the conversation before Dziendziel arrived, and

Dziendziel read the Miranda rights again several minutes later

when he entered.

The conversation over the next half hour was less than

pleasant. As Blake admits, he “may have slightly been intoxicated” 2

and he “urinated in the corner of the room, used excessive

1 Deputy Sheriff Braden was dismissed from the action before summary

judgment. In the summary judgment order, the district judge explained how

Blake conceded that another officer—Deputy DeJesus—did not use any force

against him. Blake does not contest that fact on appeal.

2 He said on video “I don’t remember shit from no days, man, I get fucked up

every day, hang out, chill, and drink, that’s what I do, I drink.” When asked

to define “fucked up,” he said, “I mean drunk.”

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profanity, acted rude and belligerent, and at one point during the

end of the interview refused to sit down.” Explaining that decision,

Blake says that he “stood from his chair taking a few steps toward

the door hoping this would cause the Detective [Dziendziel] to end

the interview. Instead of his decision forcing the interview to end

it caused the situation to escalate out of control.”

Throughout his time in the interview room, two cameras

filmed Blake, producing video evidence (with sound) that he calls

“indisputable.” It clearly shows what happened. Though

handcuffed throughout the interview, Blake began leaning into

officers’ faces while yelling, and swinging his elbows. After he

stood up, Bryant and Dziendziel pushed Blake into a corner,

leading Blake to say that “you gonna have to use your gun tonight.”

Bryant and Dziendziel then took Blake to the ground, causing

other officers—including Savelli—to enter the room. Savelli

dragged Blake out of the room by his feet as Blake tried to wrestle

free, causing him to flip onto his back.

There is no video once Blake exits the interview room, but

he can be heard laughing and yelling that he was “walking on his

elbows.” He recounts being “dragged from the interview room to

the elevator.” Blake explains that as he “reached the elevator he

was still yelling and being verbally abusive. During his verbal

escapade saliva may have flown from his mouth unintentionally

striking one of the detectives.” Beyond the initial takedown, Blake

complains of rug burns from being dragged; that Savelli used his

foot to pin Blake’s head to the ground after the spitting incident in

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the elevator; that he was dropped rather than lowered to the

ground outside the building while the officers waited for a car to

transport Blake to jail; and that Dziendziel “placed a foot to

Appellant’s chest shoving him back into a laying down position” at

that time. Blake does not contest that the officers ceased using

force once his legs had been secured with hobbles. According to

his § 1983 complaint, these actions constitute unconstitutionally

excessive force in violation of Blake’s Fourth Amendment right to

be free from unlawful seizures.

After the incident, Blake reported abrasions on both elbows,

both knees, and his face—the last of which needed a bandage. He

was charged with battery on a law enforcement officer. A

lieutenant with the Professional Standards Section of the Orange

County Sheriff’s Office produced an administrative review which,

in Blake’s words, “corroborates exactly what the Appellant stated

in his Amended Complaint.” The report concluded that the

officers had acted reasonably and violated no internal office orders

or Florida statutes. The district court granted the officers’

summary judgment motion, determining that the force used

against Blake was objectively reasonable, and thus the officers were

entitled to qualified immunity.

II.

We review a district court’s order granting summary

judgment de novo, drawing all inferences and reviewing the

evidence in the light most favorable to the non-moving party.

Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011).

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III.

Once a government official shows that he acted within the

scope of his discretionary authority, the plaintiff must try to

overcome the qualified immunity defense by showing that: (1) the

defendant violated a constitutional right, and (2) the violation of

the right was clearly established. Wood v. Moss, 572 U.S. 744, 757

(2014).

“Because interrogating suspects and witnesses is one of a law

enforcement officer’s basic duties,” the district court concluded

that the officers were acting within their discretionary authority.

We agree. The test is whether an officer was “performing a

legitimate job-related function” through “means that were within

his power.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252,

1265 (11th Cir. 2004).

Blake’s argument is that after he invoked his right to remain

silent, any further questions the officers asked him were outside

their discretionary authority because they violated his Fifth

Amendment right to remain silent. But while one “might

reasonably believe that violating someone’s constitutional rights is

never a legitimate job-related function or within the scope of a

government official’s authority,” a test framed that way would be

“no more than an untenable tautology.” Id. at 1266 (quotation

omitted). Instead, we “look to the general nature of the

defendant’s action, temporarily putting aside the fact that it may

have been committed for an unconstitutional purpose.” Id. And

even Blake concedes that in general, the officers were acting within

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their discretionary authority by interviewing him.3 See also Vinyard

v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (transporting a

suspect to jail is “clear” discretionary authority for police officers).

Because Blake does not cite any authority for his arguments

that the officers stepped outside their discretionary authority, we

assess whether he has met his burden on both prongs of qualified

immunity. He has not.

“Not every push or shove” violates the Fourth Amendment.

Graham v. Connor, 490 U.S. 386, 396 (1989) (quotation omitted).

Police officers may use some degree of physical coercion or threat

thereof to subdue an arrestee. Id. at 396; Rodriguez v. Farrell, 280

F.3d 1341, 1351 (11th Cir. 2002). Whether force was excessive or

appropriate is judged under an objectively reasonable standard

from the perspective of a reasonable officer on the scene without

the benefit of hindsight. Graham, 490 U.S. at 396–97. Factors we

must consider include “the severity of the crime at issue,” “whether

the suspect poses an immediate threat to the safety of the officers

or others,” whether he was “actively resisting arrest or attempting

to evade arrest by flight,” “the need for the application of force,”

the “extent of the injury inflicted,” and the “relationship between

the need and amount of force used.” Mobley v. Palm Beach Cnty.

3 Outside of excessive force in violation of his Fourth Amendment rights,

Blake’s other constitutional claims were dismissed before summary judgment.

He does not challenge that decision in his appellate briefing.

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Sheriff Dep’t, 783 F.3d 1347, 1353 (11th Cir. 2015) (quotations

omitted).

These factors all support the use of force displayed by the

officers here. Blake was being questioned concerning an armed

robbery on a night when he had been drinking. Though he denied

being “drunk” during the police interview, he admitted he “may

have slightly been intoxicated” and to drinking “every day.” In his

own words, Blake explained how he stood up to try to end the

interview—and video and audio show him resisting the officers’

attempts to subdue him after that. Both his words and body

language threatened the officers. And the abrasions that Blake

reported all flowed from the officers’ efforts to get and keep him

on the ground, where he could be more easily secured. Cf. Smith

v. Mattox, 127 F.3d 1416, 1417–18, 1420 (11th Cir. 1997) (denying an

officer qualified immunity at summary judgment when he used

excessive force by breaking an arrestee’s arm while he “docilely

submitted” to handcuffing on the ground).

Blake cannot point to any clearly established law to the

contrary. We have held that an officer who punched a

“handcuffed, non-resisting” suspect “for no apparent reason other

than malice” used unreasonably excessive force. Hadley v.

Gutierrez, 526 F.3d 1324, 1333–34 (11th Cir. 2008); see also Lee v.

Ferraro, 284 F.3d 1188, 1190–91, 1199 (11th Cir. 2002) (similar). But

while Blake was handcuffed, he can hardly be described as non-

resisting—nor were the officers’ efforts to secure and remove him

from the room equivalent to a punch. As we explained in Lee,

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slamming a handcuffed arrestee against a car was excessive force

when she was “completely secured, and after any danger to the

arresting officer as well as any risk of flight had passed.” Lee, 284

F.3d at 1199. Blake was only in this position once the officers had

secured his legs with a hobble on the curb—which is also when

they stopped using force. The more comparable case is Draper v.

Reynolds. Draper—after initially behaving “politely”—became

“hostile, belligerent, and uncooperative,” refusing to comply with

an officer’s request while he “gestured animatedly” and

“continuously paced” about, necessitating a taser shot before

handcuffing. Draper v. Reynolds, 369 F.3d 1270, 1272–73, 1278 (11th

Cir. 2004).

Recognizing the lack of on-point caselaw, Blake argues that

the conduct was so obviously at the core of what the Constitution

prohibits that its unlawfulness was readily apparent to all. See

Mercado v. City of Orlando, 407 F.3d 1152, 1160 (11th Cir. 2005). As

he points out, that rule is “narrow.” The plaintiff must show that

every reasonable officer would conclude that the excessive force

used was plainly unlawful—a tall order here, especially given the

post-incident administrative review. See Priester v. City of Riviera

Beach, Florida, 208 F.3d 919, 926 (11th Cir. 2000). Here, the force

was not “so far beyond the hazy border between excessive and

acceptable force that the official had to know he was violating the

Constitution even without caselaw on point.” Id. at 926 (quotation

omitted and alteration adopted). We therefore AFFIRM.