Carolyn Mincey v. Ryan Vardman

USCA11 Case: 23-11437 Document: 39-1 Date Filed: 02/21/2024 Page: 1 of 13

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11437

Non-Argument Calendar

____________________

CAROLYN MINCEY,

QUENTINA SONNIER,

Plaintiffs-Appellants,

versus

RYAN VARDMAN,

PIEDMONT HEALTHCARE, INC,

HUGHSTON HOSPITAL, INC.,

Defendants-Appellees.

____________________

USCA11 Case: 23-11437 Document: 39-1 Date Filed: 02/21/2024 Page: 2 of 13

2 Opinion of the Court 23-11437

Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 4:21-cv-00110-CDL

____________________

Before JORDAN, LAGOA, and BLACK, Circuit Judges.

PER CURIAM:

Carolyn Mincey and Quentina Sonnier appeal the district

court’s grant of summary judgment to Ryan Vardman, Piedmont

Healthcare, Inc., and Hughston Hospital, Inc., in Mincey and Son-

nier’s 42 U.S.C. § 1983 case. Mincey and Sonnier allege Vardman

violated their Fourth Amendment rights when he falsely arrested

them while they were visitors at a hospital. 1 Mincey and Sonnier

also allege the district court erred in denying them leave to amend.

After review,2 we affirm the district court.

1 Mincey and Sonnier also brought claims under Georgia state law against

Vardman, Piedmont Healthcare, Inc., and Hughston Hospital. The district

court declined to exercise supplemental jurisdiction over those claims. As we

affirm the district court’s grant of qualified immunity to Vardman, we need

not address the state law claims.

2 We review a grant of summary judgment de novo, drawing all reasonable

inferences in the light most favorable to the non-moving party. Ireland v. Prum-

mell, 53 F.4th 1274, 1286 (11th Cir. 2022). While we generally review a district

court’s decision to deny leave to amend for an abuse of discretion, we review

de novo an order denying leave to amend based on a conclusion of law. City of

Miami v. Citigroup Inc., 801 F.3d 1268, 1275 (11th Cir. 2015).

USCA11 Case: 23-11437 Document: 39-1 Date Filed: 02/21/2024 Page: 3 of 13

23-11437 Opinion of the Court 3

I. BACKGROUND

On July 7, 2019, Mincey and her daughter Sonnier were in

the waiting room of the emergency room (ER) at Piedmont Co-

lumbus Northside Hospital in Columbus, Georgia. Mincey and

Sonnier were visiting a sick loved one, and they were each holding

one of Sonnier’s 10-month-old twins. By chance, some extended

family members were also present in the ER visiting a different sick

loved one. Mincey and Sonnier were sitting with several family

members, including Patricia Banks, Jariyah Cotton, Alberta Cot-

ton, Nifferteria Parham, Keonte Alexander, Marsha Alexander, and

Linda Green.

Vardman was a corporal in the Columbus Police Depart-

ment, and was working off-duty providing security in the ER on

July 7, 2019. Vardman was wearing his standard issue Columbus

Police Department uniform. Vardman was seated at the front desk

of the ER waiting room next to Katharina Spurlock, the ER patient

access representative. Spurlock controlled access to the ER rooms

from the waiting area. At one point, when Spurlock opened the

secure doors to allow an authorized visitor into the ER, another

unauthorized person also went through the secure doors. Spurlock

expressed her frustration, and Keonte Alexander made a comment

to those sitting next to him that “if she didn’t like her job, she needs

to go find another one.”

This led Vardman to get up from behind the desk to address

the group. Keonte Alexander acknowledged he made the com-

ment about Spurlock. When Vardman told the group to “shut up,”

USCA11 Case: 23-11437 Document: 39-1 Date Filed: 02/21/2024 Page: 4 of 13

4 Opinion of the Court 23-11437

he did so in an “aggressive and disrespectful” way, that was “rude

and loud.” Vardman told the group if they were not quiet, they

would have to leave.

Mincey and Vardman argued about her behavior and Spur-

lock’s enforcement of hospital policies. Another visitor in the ER

waiting room, Keith Wright, videoed some of the encounter on his

phone. On the video, the following exchange can be heard:

Vardman: Are we good?

Mincey: Sit down and stop talking to me.

Vardman: Okay. Stand up . . . give the kid to some-

one . . . stand up.

Mincey: No, I’m not.

Vardman: Do you want to go to jail?

Mincey: Do you?

Vardman: You want to go to jail? Stand up . . .

Mincey: [Inaudible] not bothering you . . .

Vardman: You’re not going to do that . . . you’re

not going to do this . . . no you’re not . .

. what you’re doing is you’re causing a

scene.

Mincey: No . . . I didn’t say anything . . .

Vardman: You are . . . She [Spurlock] is not being

rude . . . listen . . . listen . . . what she’s

[inaudible] is . . . she’s [inaudible] policy

and procedures . . . there’s a reason for

it.

USCA11 Case: 23-11437 Document: 39-1 Date Filed: 02/21/2024 Page: 5 of 13

23-11437 Opinion of the Court 5

After this first exchange, Vardman returned to the front

desk. He again reminded the group he would have to ask them to

leave if they did not sit quietly. In response, Mincey gave Vardman

a dismissive hand gesture, which Mincey calls the “whatever hand.”

Vardman then left the desk, and walked back toward Mincey and

the group. Mincey testified Vardman stated she needed to leave or

she would be arrested. The ER Security Video shows Vardman

standing in front of Mincey, who is still holding one of the twins,

talking and motioning with his hands. Vardman is then seen walk-

ing away and speaking into his radio. This call was recorded. Vard-

man states “Code 3” and asks for a transport. A “Code 3” is a re-

quest for a backup officer. After the radio call, Vardman returned

to speak with Mincey. At this point, Wright began filming again.

Mincey: I did not say anything to you . . .

Vardman: You’ve been asked to leave . . . if you

don’t leave, you’re going to jail.

Mincey: Let’s go . . . racist ass motherfuckers . . .

I get tired of this shit . . .

Vardman: Not . . . now you’re under arrest

Mincey: I’m not . . . I’m not [inaudible]

Vardman: Ma’am stop . . .

Mincey: Do not touch me!

Vardman: Get the child . . .

Mincey: Don’t touch me!

Vardman: Give the child . . . give the child . . . oh

no, no, no that was too late . . . too late

USCA11 Case: 23-11437 Document: 39-1 Date Filed: 02/21/2024 Page: 6 of 13

6 Opinion of the Court 23-11437

. . . you’re jerking the child around

ma’am . . . stop . . . you know what

you’re doing . . .

While holding the child, Mincey physically resisted Vardman’s ef-

forts to arrest her, pushing him as she was leaving. Sonnier, who

was also holding a child, placed herself between Vardman and

Mincey, and did not comply with Vardman’s order to “get out of

the way,” making it more difficult for Vardman to arrest Mincey.

Sonnier also pushed Vardman as he attempted to separate her from

Mincey. Throughout the struggle, Vardman directed Mincey and

Sonnier to stop using the children to interfere with their arrests.

Her resistance resulted in a cut to Vardman’s head when Mincey

knocked off his sunglasses. Once Mincey and Sonnier finally re-

leased the children, Vardman arrested Mincey and Sonnier.

Mincey was charged with misdemeanor disorderly conduct

in violation of O.C.G.A. § 16-11-39, misdemeanor criminal trespass

in violation of O.C.G.A. § 16-7-21, misdemeanor reckless conduct

in violation of O.C.G.A. § 16-5-60, and felony obstruction of an of-

ficer in violation of O.C.G.A. § 16-1024(b). Sonnier was charged

with misdemeanor reckless conduct and felony obstruction of an

officer. At the conclusion of a jury trial, Mincey and Sonnier were

acquitted on all charges.

II. DISCUSSION

To receive qualified immunity, an officer “bears the initial

burden to prove that he acted within his discretionary authority.”

Dukes v. Deaton, 852 F.3d 1035, 1041 (11th Cir. 2017). The plaintiff

USCA11 Case: 23-11437 Document: 39-1 Date Filed: 02/21/2024 Page: 7 of 13

23-11437 Opinion of the Court 7

then bears the burden of proving “the defendant violated a consti-

tutional right” and “the right was clearly established at the time of

the violation.” Barnes v. Zaccari, 669 F.3d 1295, 1303 (11th Cir. 2012).

Because Mincey and Sonnier do not dispute Vardman was engaged

in a discretionary function, they bear the burden of proving Vard-

man was not entitled to qualified immunity.

Mincey and Sonnier claim Vardman is liable under the

Fourth Amendment for false arrest. In the context of an arrest,

probable cause exists “when the facts, considering the totality of

the circumstances and viewed from the perspective of a reasonable

officer, establish ‘a probability or substantial chance of criminal ac-

tivity.’” Washington v. Howard, 25 F.4th 891, 898 (11th Cir. 2022)

(quoting District of Columbia v. Wesby, 583 U.S. 48, 57 (2018)). In

assessing whether there was probable cause for an arrest, we “ask

whether a reasonable officer could conclude that there was a sub-

stantial chance of criminal activity.” Id. at 902 (quotation marks

and alteration omitted). “Probable cause does not require conclu-

sive evidence and is not a high bar.” Id. at 899 (quotation marks

omitted).

An officer need not have actual probable cause, but only ar-

guable probable cause, to receive qualified immunity. Brown v. City

of Huntsville, 608 F.3d 724, 734 (11th Cir. 2010). “Arguable probable

cause exists where reasonable officers in the same circumstances

and possessing the same knowledge as the [officer] could have be-

lieved that probable cause existed to arrest.” Id. (quotation marks

USCA11 Case: 23-11437 Document: 39-1 Date Filed: 02/21/2024 Page: 8 of 13

8 Opinion of the Court 23-11437

omitted). “Showing arguable probable cause does not . . . require

proving every element of a crime.” Id.

We begin with discussing Mincey’s arrest for disorderly con-

duct, which is the arrest that preceded the offenses of reckless con-

duct and obstruction of an officer in Mincey’s and Sonnier’s arrests.

See Glenn v. State, 849 S.E.2d 409, 418 (Ga. 2020) (“When an arrest

is lawful, of course, the right to resist an unlawful arrest is not per-

tinent.”).

A. Disorderly conduct

To determine whether there was probable cause or arguable

probable cause for Mincey’s disorderly conduct arrest, we ask

whether a reasonable officer could have concluded there was a sub-

stantial chance she had committed the crime of disorderly conduct.

(a) A person commits the offense of disorderly con-

duct when such person commits any of the following:

....

(3) Without provocation, uses to or of another person

in such other person’s presence, opprobrious or abu-

sive words which by their very utterance tend to in-

cite to an immediate breach of the peace, that is to

say, words which as a matter of common knowledge

and under ordinary circumstance will, when used to

or of another person in such other person’s presence,

naturally tend to provoke violent resentment, that is,

words commonly called “fighting words”; or

(4) Without provocation, uses obscene and vulgar or

profane language in the presence of or by telephone

USCA11 Case: 23-11437 Document: 39-1 Date Filed: 02/21/2024 Page: 9 of 13

23-11437 Opinion of the Court 9

to a person under the age of 14 years which threatens

an immediate breach of the peace.

O.C.G.A. § 16-11-39(a)(3)-(4).

Vardman had arguable probable cause to arrest Mincey for

disorderly conduct. The “totality of the circumstances” is im-

portant in this analysis. See Washington, 25 F.4th at 898. Mincey

frames the probable cause issue solely in response to her profane

comment calling Vardman a “racist ass motherfucker” as she at-

tempted to leave the hospital. We agree that Mincey’s vulgar lan-

guage, without more, would not constitute a violation of the stat-

ute. See In re L.E.N., 682 S.E.2d 156, 158 (Ga. Ct. App. 2009) (“State

law no longer criminalizes the use of unprovoked language threat-

ening an immediate breach of peace, which is obscene, vulgar, or

profane, that is directed to a person older than 14 years of age, un-

less such language also constitutes ‘fighting words.’” (quotation

marks omitted)). Further,

the fighting-words exception to constitutionally pro-

tected speech requires a narrower application in cases

involving words addressed to a police officer. This is

because a properly trained officer may reasonably be

expected to exercise a higher degree of restraint than

the average citizen, and thus be less likely to respond

belligerently to fighting words.

Trammell v. State, 851 S.E.2d 834, 851 (Ga. Ct. App. 2020) (quoting

Knowles v. State, 797 S.E.2d 197, 201 (Ga. Ct. App. 2017)). Merely

insulting an officer is not enough for a disorderly conduct arrest.

See id.

USCA11 Case: 23-11437 Document: 39-1 Date Filed: 02/21/2024 Page: 10 of 13

10 Opinion of the Court 23-11437

However, Mincey’s words and actions must be put into con-

text. See Knowles, 797 S.E.2d at 278-79 (“[W]hen determining

whether words constitute fighting words, the circumstances sur-

rounding the words can be crucial, for only against the background

of surrounding events can a judgment be made whether these

words had a direct tendency to cause acts of violence by others.”

(quotation marks omitted)). First, Mincey engaged in an argument

with Vardman in an ER waiting room where people were waiting

for medical care and tensions are often high. In addition to

Mincey’s family, there were people waiting in the same room to see

a medical professional. For example, Lindsey Kyte was waiting to

see a medical professional while suffering a serious ear infection

and was in severe pain. Second, Mincey continued holding her 10-

month-old grandson even after being asked by Vardman to hand

the child to someone else. Mincey had several family members

around who could have held the child after Vardman asked Mincey

to hand the child to someone else. Mincey’s actions in the video

support that she failed to hand over the child and kept the child to

use as a shield. Third, Mincey’s obscene and vulgar or profane lan-

guage was used in the presence of two children under the age of

14 years. Fourth, Mincey used the obscene language in front of the

rest of her family, which could threaten a breach of the peace.

A reasonable officer, knowing what Vardman knew at the

time, objectively could have believed probable cause existed to ar-

rest Mincey for a violation of O.C.G.A. § 16-11-39(a)(3)-(4). See

Brown, 608 F.3d at 734. We conclude Mincey’s actions of (1) argu-

ing with Vardman in front of a group of her family, (2) while

USCA11 Case: 23-11437 Document: 39-1 Date Filed: 02/21/2024 Page: 11 of 13

23-11437 Opinion of the Court 11

holding her 10-month-old grandson, (3) in an ER waiting room,

and (4) using profane language in the presence of children under

14 years old, could have indicated to an objectively reasonable of-

ficer at the scene that Vardman’s conduct was disorderly, even if

those circumstances were ultimately insufficient to prove a viola-

tion of § 16-11-39(a)(3)-(4). See id. Consequently, the district court

did not err in determining Vardman was entitled to qualified im-

munity on Mincey’s claim for false arrest.

B. Reckless Conduct and Obstruction of an Officer

Georgia’s reckless conduct statute provides, “[a] person who

. . . endangers the bodily safety of another person by consciously

disregarding a substantial and unjustifiable risk that [her actions]

will cause harm or endanger the safety of the other person and the

disregard constitutes a gross deviation from the standard of care

which a reasonable person would exercise in the situation is guilty

of a misdemeanor.” O.C.G.A. § 16-5-60(b). Georgia’s obstruction

statute provides, “[w]hoever knowingly and willfully resists, ob-

structs, or opposes any law enforcement officer . . . in the lawful

discharge of his . . . duties by offering or doing violence to the per-

son of such officer . . . shall be guilty of a felony.” O.C.G.A. § 16-

10-24(b).

Vardman possessed probable cause to arrest Mincey and

Sonnier for reckless conduct and obstruction of an officer. First,

Vardman was acting within the lawful discharge of his duties as he

had arguable probable cause to arrest Mincey for disorderly con-

duct. In the course of making that lawful arrest, Mincey, while

USCA11 Case: 23-11437 Document: 39-1 Date Filed: 02/21/2024 Page: 12 of 13

12 Opinion of the Court 23-11437

holding a 10-month-old child, physically interfered with Mincey’s

arrest, and Sonnier, while also holding a 10-month-old child, phys-

ically interfered with Mincey’s arrest. As the district court stated,

“[b]y holding the children during their arrest, [Mincey and Sonnier]

put the children in harm’s way. Under these circumstances, Vard-

man possessed probable cause to arrest them for both reckless con-

duct and felony obstruction.” Vardman was entitled to qualified

immunity as he had probable cause to arrest Mincey and Sonnier

for these offenses. 3

C. Leave to Amend

Mincey and Sonnier moved to amend their complaint to add

a negligence count 88 days after the amended pleadings deadline,

and only two days before the extended discovery deadline expired.

The district court denied the motion, concluding they failed to

show good cause for filing an amended complaint beyond the dead-

line established by the scheduling order. Mincey and Sonnier con-

tend the district court used the wrong standard in denying the mo-

tion, asserting the court should have used the Federal Rule of Civil

Procedure 15(a)(2) standard of freely giving leave when justice so

requires, rather than the Rule 16 “good cause” standard. Mincey

and Sonnier assert the scheduling order’s language that any amend-

ments after 90 days prior to the close of discovery “shall require

3 Because we conclude Vardman had arguable probable cause or actual prob-

able cause for at least one charged offense, it is not necessary to address

whether the trespass charge against Mincey was supported by probable cause.

USCA11 Case: 23-11437 Document: 39-1 Date Filed: 02/21/2024 Page: 13 of 13

23-11437 Opinion of the Court 13

leave of Court,” required the district court to use the Rule 15 stand-

ard.

That the scheduling order referenced “leave of Court” does

not implicitly adopt the Rule 15 standard for amendments.

“[W]hen a motion to amend is filed after a scheduling order dead-

line, Rule 16 is the proper guide for determining whether a party’s

delay may be excused.” Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418

n.2 (11th Cir. 1998). Mincey and Sonnier filed their motion to

amend after the scheduling order deadline—thus, Rule 16’s “good

cause” standard was the proper legal framework. The district court

did not err. 4

III. CONCLUSION

We affirm the district court’s grant of summary judgment.

AFFIRMED.

4 Mincey and Sonnier do not contend the district court abused its discretion in

its good cause finding.