Renardo Lewis v. City of Marietta

USCA11 Case: 23-10614 Document: 33-1 Date Filed: 11/28/2023 Page: 1 of 12

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-10614

Non-Argument Calendar

____________________

RENARDO NEHEMIAH LEWIS,

LUBREEZE LEWIS-FRANKLIN,

Plaintiffs-Appellants,

versus

CITY OF MARIETTA,

CHIEF DAN FLYNN,

Police Chief Individual and Professional Capacity,

ENRIQUE MALLEN,

JOSHUA MADISON,

STACEY FOWLER,

In their individual and professional capacities, et al.,

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2 Opinion of the Court 23-10614

Defendants-Appellees,

MUHAMMED IFTIKHAR,

CEO Individual and Personal, et al.,

Defendants.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:21-cv-01883-ELR

____________________

Before ABUDU, ANDERSON, and DUBINA, Circuit Judges.

PER CURIAM:

Appellants Renardo Lewis and Lubreeze Lewis-Franklin

(Lewis’s wife) appeal the district court’s order granting Appellees’

motion to dismiss, pursuant to Civil Rule of Civil Procedure

12(b)(6), Appellants’ 42 U.S.C. § 1983 complaint. Appellants origi-

nally filed their complaint in state court, alleging claims of mali-

cious prosecution, false arrest, and excessive force against the Ap-

pellees, the City of Marietta, Marietta Police Chief Dan Flynn, City

of Marietta police officers Joshua Madison, Stacey Fowler, Enrique

Mallen and Noah Mack (“City Appellees”), International House of

Pancakes (“IHOP”) employees Joseph Sudderth and David

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23-10614 Opinion of the Court 3

Vanzant, IHOP’s CEO Muhammed Iftikhar and Iftikhar Enter-

prises, Inc. (“IHOP Defendants”). Appellees/Defendants removed

the case to federal court, and Appellants filed an amended com-

plaint raising fifteen counts against the various Appellees/Defend-

ants. The IHOP Defendants filed answers, and the City Appellees

moved to dismiss all the claims against them. The district court

dismissed the claims against the City Appellees, and the Appellants

appeal from this order of dismissal. Having read the parties’ briefs

and reviewed the record, we affirm in part and reverse in part the

district court’s order.

I.

According to the complaint, early on the morning of Sun-

day, March 31, 2019, Lewis entered an IHOP to place a take-out

order. Lewis requested bacon as part of his order, and Sudderth,

an employee, informed Lewis that the restaurant was out of bacon.

Lewis returned to his vehicle to ask his wife what she wanted in

place of bacon, and when Lewis re-entered the IHOP, Sudderth in-

formed him that the grill was closed. Lewis and Sudderth engaged

in a verbal exchange regarding the restaurant’s customer service.

David Vanzant, cook and manager at the IHOP, called the police to

report that Lewis had threatened the staff and had a weapon. Of-

ficer Madison initially responded to the call, and later Officers Mal-

len, Fowler, and Mack joined him at the IHOP. Officer Fowler re-

quested that Lewis produce his driver’s license, and while he was

doing so, Lewis heard Officer Madison yelling at his wife. Lewis

pivoted to check on his wife, and at that point, Lewis alleges that

Officer Mallen forcefully grabbed his arm and slammed him

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against the glass window. Lewis claims that the officers proceeded

to beat him, stun him with a taser, and arrest him, although he was

complying with the officers’ instructions and was not resisting. Of-

ficers took Lewis to the hospital and then to the Cobb County De-

tention Center.

Officials charged Lewis with twenty-seven criminal counts

stemming from the IHOP incident and held him in jail for thirty-

one days. Later, a grand jury indicted him on all charges, but the

State entered a nolle prosequi. Subsequently, Lewis and his wife filed

their complaint against the Appellees. They asserted the following

federal claims for: (1) excessive force against the City Officers; (2)

Monell1 liability against the City and Chief of Police; (3) malicious

prosecution against the City Officers; (4) false arrest against the

City Officers; (5) false imprisonment against the City Officers and

IHOP Defendants; state claims for (6) malicious prosecution

against City Officers, Vanzant and Sudderth; (7) intentional inflic-

tion of emotion distress against City Officers, Vanzant and Sud-

derth, (8) assault and battery against City Officers; (9) negligent hir-

ing and retention against the City and Chief of Police; (10) false

arrest against the Sheriff; (11) false imprisonment and false arrest

against the Sheriff; (12) federal claim of conspiracy against the City

Officer and the IHOP Defendants; (13) state law claim of vicarious

liability against Iftikhar and Iftikhar Enterprises; (14) state law

claim of negligent hiring and retention against Iftikhar and Iftikhar

Enterprises; and (15) state law claim of loss of consortium against

1 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018 (1978).

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all Appellees. The City Appellees moved to dismiss the claims un-

der Rule 12(b)(6), and the district court granted the motion. The

IHOP Defendants did not join in the motion to dismiss, and they

are not parties in this appeal.

II.

We review de novo a district court’s grant of a motion to dis-

miss, “accepting the factual allegations in the complaint as true and

construing them in the light most favorable to the plaintiff.” Boyd

v. Warden, Holman Corr. Facility, 856 F.3d 853, 863-64 (11th Cir. 2017)

(internal quotation marks and alteration omitted). To survive a

Rule 12(b)(6) motion to dismiss, “a complaint must contain suffi-

cient factual matter, accepted as true, to state a claim to relief that

is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.

1937, 1949 (2009) (internal quotation marks omitted). While a

complaint need not contain detailed allegations, it must “include

enough facts to raise a right to relief above the speculative level on

the assumption that all the allegations in the complaint are true.”

Boyd, 856 F.3d at 864 (internal quotation marks omitted).

“In ruling on a motion to dismiss, the district court may con-

sider an extrinsic document if it is (1) central to the plaintiff’s claim,

and (2) its authenticity is not challenged.” Speaker v. United States

HHS CDC & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010) (citation

omitted). When the exhibits attached to the plaintiff’s pleading

contradict the general and conclusory allegations of the pleading,

the exhibits govern, even at the motion to dismiss stage. See Griffin

Indust. v. Irvin, 496 F.3d 1189, 1206 (11th Cir. 2007). Moreover, video

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footage that obviously contradicts the non-movant’s version of the

facts will be considered rather than the non-movant’s account.

Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1315 (11th Cir. 2010).

III.

A. Motion to Dismiss

1. The City

Appellants contend that the district court erred by granting

the City Appellees’ motion to dismiss their federal § 1983 claims.

Specifically, as to the City, however, the Appellants fail to include

any arguments or authority to show how the district court erred in

finding that the City was not liable for any claim. As such, they

have abandoned their claims against the City. See Christmas v. Harris

Cnty., Ga., 51 F.4th 1348, 1354 (11th Cir. 2022) (failure to raise an

issue in an initial brief is a forfeiture of that issue). Further, on the

merits, the Appellants fail to allege a direct causal link between the

City’s policy or custom and the alleged constitutional violation.

City of Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 1203

(1989); Grech v. Clayton Cnty., Ga., 335 F.3d 1326, 1329 (11th Cir.

2003). Appellants do not allege facts to support their contention

that the City had an officially promulgated policy or an unofficial

custom or practice of allowing for excessive force, false arrest, or

malicious prosecution by its officers. Rather, the Appellants make

broad and conclusory allegations regarding the policies and train-

ing of City officers and fail to state a § 1983 claim against the City.

Appellants also fail to state adequately a claim against the

City pursuant to Monell v. New York City Dep’t of Soc. Servs., 436 U.S.

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658, 694, 98 S. Ct. 2018, 2037 (1978) (local government cannot be

sued under § 1983 for an injury inflicted solely by its agents or em-

ployees). Absent an explicit policy for inadequate training or su-

pervision, the Appellants must show that the City’s failure to train

evidenced a “deliberate indifference” to the rights of its inhabitants.

Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). Appel-

lants can make this showing by presenting “some evidence that the

[City] knew of a need to train and/or supervise in a particular area

and the [City] made a deliberate choice not to take any action.” Id.

Appellants’ claim is devoid of any such showing, and we conclude

from the record that their § 1983 claims against the City fail. Thus,

we affirm the district court’s order dismissing these claims against

the City.

2. Chief of Police

Appellants claim that the district court erred in dismissing

the federal § 1983 claim for supervisory liability and the state law

claim of negligent hiring and retention against the Chief of Police

in his individual capacity. However, they fail to argue or brief any

authority to support their claim. As such, they have abandoned this

claim. See Christmas, 51 F.4th at 1354. Assuming they did not aban-

don these claims, the federal claim fails nonetheless because the

Appellants make no allegations that the Chief of Police directly

participated in any of the alleged constitutional violations. See

Keith v. DeKalb Cnty., Ga., 749 F.3d 1034, 1047-48 (11th Cir. 2014)

(stating that to be held liable under a theory of supervisory liability,

a plaintiff must show that the supervisor “either directly

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8 Opinion of the Court 23-10614

participated in the unconstitutional conduct or that a causal con-

nection exists between the supervisor’s actions and the alleged con-

stitutional violation”). As for the state claim, because the Appel-

lants do not show malice or an intent to injure by the Chief, this

claim also fails. See Grammens v. Dollar, 697 S.E. 2d 775, 777 (Ga.

2010) (stating that official is entitled to immunity unless plaintiff

can show that officer acted with actual malice or an intent to injure

in undertaking his discretionary acts of hiring and retaining em-

ployees). Thus, we conclude that the district court properly dis-

missed these claims against the Chief of Police.

3. Individual Officers

Appellants argue that the district court erred in dismissing

their federal Fourth Amendment claims of excessive force, mali-

cious prosecution, false arrest, and conspiracy against the individ-

ual officers. The district court conducted an analysis under quali-

fied immunity and found that there was no dispute that the officers

were acting within the scope of their discretionary authority dur-

ing the incident. Grider v. City of Auburn, 618 F.3d 1240, 1268 (11th

Cir. 2010). The district court thus considered whether the Appel-

lants presented sufficient facts to allege a violation of a constitu-

tional right, and, if so, whether that right was clearly established.

Finding that the Appellants failed to support their allegations, the

district court determined that the officers were entitled to qualified

immunity and dismissed these claims.

We conclude, based on the record, that the district court

erred in dismissing the Appellees’ claim of excessive force. Having

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23-10614 Opinion of the Court 9

reviewed the record, particularly the videotape of the incident, we

conclude that the officers initial use of force to secure Lewis against

the window was reasonable under the circumstances. However,

we disagree with the district court regarding the continued use of

force by the officers. Although Lewis was verbally caustic toward

the officers, he did not appear combative physically, and a reasona-

ble officer would not have used a disproportionate amount of force

under the circumstances as these officers did to subdue Lewis and

handcuff him. We conclude that the Appellees’ complaint contains

sufficient factual matter, that accepted as true, states a claim to re-

lief that is plausible on its face. Accordingly, we reverse the district

court’s order of dismissal as to the excessive force claim against the

individual officers, and remand this claim to the district court.

However, we conclude that the district court properly dis-

missed the malicious prosecution claim, the false arrest claim, and

the conspiracy claim against the individual officers. The Appellants

do not allege facts sufficient to establish that the legal process justi-

fying his seizure was constitutionally infirm and that his seizure

would not otherwise be justified without legal process. See Wil-

liams v. Aguirre, 965 F.3d 1147, 1157-59 (11th Cir. 2020) (claim of

malicious prosecution). Appellants have not alleged that the indi-

vidual officers intentionally or recklessly made misstatements or

omissions necessary to support the arrest warrant for Lewis; thus,

their malicious prosecution claim fails. Likewise, the district court

properly dismissed the false arrest claims because the officers had

probable cause to arrest Lewis. See Myers v. Bowman, 713 F.3d 1319,

1326 (11th Cir. 2013) (evidence of probable cause is an absolute bar

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10 Opinion of the Court 23-10614

to false arrest claims). As to the conspiracy claim, the record

demonstrates that the Appellants failed to show that the officers

and the IHOP employees “reached an understanding” to deny

Lewis his constitutional rights. See NAACP v. Hunt, 891 F.2d 1555,

1563 (11th Cir. 1990).

Appellants also contend on appeal that the district court

erred in dismissing the state law claims of false imprisonment, ma-

licious prosecution, intentional infliction of emotional distress, and

assault and battery against the individual officers. The district

court determined that the Appellants failed to allege any facts

showing that the individual officers acted with actual malice, and,

thus, the officers were entitled to official immunity under Georgia

law. See e.g., Murphy v. Bajjani, 647 S.E.2d 54, 60 (2007) (explaining

actual malice for purposes of official immunity). The record sup-

ports the district court’s determination, and, thus, we conclude

that the district court properly dismissed the state law claims

against the individual officers.

B. Ante Litem Notice

Appellants contend that the district court erroneously dis-

missed their § 1983 and state law intentional tort claims against the

City due to their failure to serve a proper ante litem notice. See Ga.

Code § 50-21-26 (2022) (providing that a party cannot bring an ac-

tion against the State without giving notice of the claim and its in-

tent to litigate). A review of the record demonstrates that this as-

sertion is incorrect. The district court’s order clarifies that the only

claim the district court dismissed for improper ante litem notice is

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one claim for negligence against the City: a state law claim for neg-

ligent hiring and retention against the Chief of Police in his official

capacity and the City. In a further order, the district court reiter-

ated that it dismissed only one claim based on the improper ante

litem notice requirement. Thus, the record demonstrates that the

Appellants’ claim is meritless.

C. Consideration of Police Officers’ Videos

The Appellants argue that the district court improperly con-

sidered the officers’ body camera videos without viewing and con-

sidering their witness camera footage. The record shows that the

Appellants specifically incorporated by reference the witness video

in their amended complaint and incorporated by reference the of-

ficers’ body camera video. The district court did consider both be-

cause it alluded to both videos in its orders. Further, the district

court could consider any documents attached to the Rule 12 mo-

tion if the attachment was central to one of the claims and its au-

thenticity was undisputed. See Horsley v. Feldt, 304 F.3d 1125, 1134-

35 (11th Cir. 2002) (discussing incorporation by reference doctrine).

The Appellants have never challenged the authenticity of any video

submitted to or considered by the district court nor have they ar-

gued how the witness video casts the facts differently than the of-

ficers’ body camera video. Thus, the Appellants fail to demonstrate

any error by the district court in its consideration of the videos.

D. Use of Force standard

The Appellants claim that the district court improperly re-

lied on Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865 (1989), to

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12 Opinion of the Court 23-10614

analyze their claim of excessive force under the Fourth Amend-

ment rather than the Fourteenth Amendment substantive due pro-

cess provision. The record shows that the district court determined

that the officers had probable cause to arrest Lewis, regardless of

whether he had, in fact, committed a crime. The Appellants do not

demonstrate any error with respect to the district court’s probable

cause analysis, and Georgia law shows that the conduct of which

Lewis engaged establishes probable cause to arrest a suspect for ob-

struction of justice. See Draper, 369 F.3d at 1277 (“By repeatedly

refusing to comply with [the officer’s] reasonable instructions, and

by acting belligerently and confrontationally, Draper hindered [the

officer] in completing the traffic stop. Thus, [the officer] had ample

probable cause to arrest Draper” for willful obstruction of an of-

ficer in the lawful discharge of his duties.). Thus, we conclude that

the district court properly analyzed the use of force claim under

the Fourth Amendment.

IV.

Accordingly, based on the foregoing reasons, we reverse the

district court’s order of dismissal regarding the excessive force

claim against the individual officers and affirm the district court’s

order in all other respects against the City, the Police Chief, and the

individual officers. We remand this case for further proceedings

consistent with this opinion.

AFFIRMED in part, REVERSED in part, and

REMANDED.