Altagracia Banuchi v. City of Homestead

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-12375

Non-Argument Calendar

____________________

ALTAGRACIA BANUCHI,

as Personal Representative of the Estate of

Edward Blanton Foster III, and o.b.o. the

Estate of Edward Blanton Foster III and the

survivors of the Estate, E.F., J.F., A.D.F., N.F.,

M.F., and A.B.F.,

Plaintiff-Appellant,

versus

CITY OF HOMESTEAD,

ANTHONY GREEN,

individually and as an employee of the City

of Homestead,

Defendants-Appellees.

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2 Opinion of the Court 22-12375

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:20-cv-25133-RNS

____________________

Before NEWSOM, LUCK, and ANDERSON, Circuit Judges.

PER CURIAM:

This case arises out of the tragic shooting of Edward Blanton

Foster III by City of Homestead police officer Anthony Green. On

behalf of Foster’s estate, Altagracia Banuchi, the personal repre-

sentative, appeals the district court’s summary judgment for the

City and Green in this section 1983 excessive force action. Banuchi

raises three issues on appeal. First, she contends that the district

court erroneously weighed the evidence in favor of Green when it

granted summary judgment. Second, she argues that her first

amended complaint should not have been dismissed because she

properly set forth a Monell claim against the City. And third, she

asserts that the district court abused its discretion in denying her

leave to amend her Monell claim in a third amended complaint. Af-

ter careful review, we affirm.

FACTUAL BACKGROUND

Green was on duty and in uniform on July 16, 2015, when

dispatch alerted him that a 911 caller had just reported that a “light-

skinned male” in red basketball shorts and a white or black shirt

was carrying a firearm and walking east through a city park. As

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Green approached the area, he saw Foster, a light-skinned black

male wearing a black shirt and red basketball shorts. Foster ap-

peared nervous and agitated. He walked at a quick pace and re-

peatedly looked over his left shoulder, with the left side of his

shorts hanging “way down” from the weight of “something very

heavy.” In Green’s experience, the manner in which Foster’s shorts

sagged indicated that he was likely carrying a firearm. Green pulled

up to Foster in his police car, with both front windows rolled down,

drew his firearm, pointed it at Foster through his windshield from

the driver’s seat, and yelled, “Let me see your hands, put your

hands up, let me see your hands, let me see your hands.” Foster

“immediately” retrieved a firearm from his left side waistband, ac-

cording to Green. Foster then pivoted towards Green, bringing the

gun up towards Green, when suddenly Foster became startled and

took off running.

Green says Foster carried his firearm in his right hand while

he ran away. As Green drove after Foster, he yelled out of the win-

dow, “Stop, drop the gun, stop, drop the gun, drop the gun.”

While continuing to run, Foster made eye contact with Green and

began to raise his firearm across his body. As soon as Foster

pointed his firearm at Green, Green fired eight rounds at Foster.

Green says he stopped firing as soon as he saw Foster’s legs start to

buckle. Seconds later, Green heard Foster’s firearm hit the ground.

Green exited his car with his gun drawn and positioned himself be-

hind the engine area of his car before radioing for backup. Green

advised over the radio, “Shots fired. Subject down with a gun.”

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Daryl Mays, another Homestead police officer, arrived at

the scene at that time. Mays did not see Green shoot Foster, but

he saw Foster fall to the ground just as he approached the scene.

Mays noticed the gun on the ground beside Foster and kicked it

away so Foster could not reach it.

Mays handcuffed Foster while Green radioed for medical

support, but when Green and Mays noticed Foster was having dif-

ficulty breathing, they took him out of the handcuffs and adminis-

tered aid. While Green performed CPR, Foster became nonre-

sponsive. Paramedics arrived shortly after and transported Foster

to a hospital.

The Miami-Dade State Attorney’s Office and the Miami-

Dade Police Department began investigating the incident that

month, July 2015, to determine whether Green violated Florida

law.

PROCEDURAL HISTORY

Banuchi filed her first lawsuit against the City and Green

two years later, on July 17, 2017, in state court. The City and Green

later removed that action to federal court on September 11, 2018.

Then, on April 9, 2020, Banuchi voluntarily dismissed the action to

wait until the Miami-Dade State Attorney’s Office and Miami-Dade

Police Department completed their investigations into Green’s

shooting.

Before the completion of the investigations, Banuchi filed a

second action in state court, alleging only state law claims against

the City and Green, on July 29, 2020. Banuchi filed this second

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action “in an abundance of caution” to ensure that this complaint,

which she said was the “same complaint” already filed in federal

court, was not “jurisdictionally out-of-time.”

The Miami-Dade State Attorney and the Miami-Dade Police

Department ended their investigations on October 6, 2020.

The following month, Banuchi moved to reopen her first

lawsuit, now in federal court, on November 11, 2020. Banuchi also

amended the complaint in her state court action on December 10,

this time asserting federal section 1983 claims. The following

week, on December 16, the City and Green removed Banuchi’s sec-

ond action to federal court. Then, on January 8, 2021, the district

courts adjudicating the two actions agreed to transfer the later-filed

federal action to the first district court because both actions had

“the same subject matter and defendants.”

In her first amended complaint from December 10, Banuchi

raised ten counts. She raised three federal claims—Fourth and

Fourteenth Amendment claims under section 1983—against the

City (counts IV and V) and Green (count I). She raised seven state

law claims: assault and battery claims against the City (count VI)

and Green (count II); state law false imprisonment claims against

the City (count VII) and Green (count III); a claim for negligent use

of a firearm against the City (count VIII); and negligent training and

supervision against the City (count IX). And finally, Banuchi al-

leged a state law wrongful death claim against both the City and

Green (count X).

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The City and Green moved to dismiss Banuchi’s complaint.

They argued that: Green was entitled to qualified immunity as to

Banuchi’s Fourth and Fourteenth Amendment claims; Banuchi

failed to properly raise a Monell claim against the City; her state law

claims were time-barred or improperly alleged; and her complaint

was a shotgun pleading.

The district court dismissed all counts with prejudice except

for two claims: Banuchi’s section 1983 Fourth Amendment claim

against Green—which it left intact—and her state wrongful death

claim against the City and Green—which it dismissed without prej-

udice. For her Fourth Amendment claim, the district court con-

cluded that Banuchi met her burden at that stage to show that

Green was not entitled to qualified immunity. As to Banuchi’s state

wrongful death claim, the district court advised Banuchi that she

could amend her complaint to replead this claim in a “discrete and

succinct manner such that [the City and Green] have fair notice of

the claims against them.”

Banuchi timely filed her second amended complaint, re-

pleading the state wrongful death claim. But nine days later, Ba-

nuchi moved for reconsideration, clarification, and leave to file a

third amended complaint. Banuchi explained she needed to file a

third amended complaint to allege additional instances disclosed

through discovery where Green used excessive force on the job

and which she said the City never “fully investigated.” She also

asked the district court to reconsider and clarify (1) its order requir-

ing that she reallege the state wrongful death claim in only one

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count, and (2) its order dismissing her Monell claims against the

City.

The district court denied Banuchi’s motion “in its entirety.”

In denying her requests for reconsideration and clarification, the

district court explained that nothing in this case warranted such an

“extraordinary remedy.” Rather, Banuchi (1) failed to allege facts

that would allow the district court to infer a municipal policy,

(2) asserted arguments plainly belied by the record, and (3) pro-

vided no legal basis to warrant either reconsideration or a clarifica-

tion. In denying her motion for leave to file a third amended com-

plaint, the district court explained that Banuchi failed to show good

cause under Federal Rule of Civil Procedure 16(b) to obtain the

right to amend, and failed to show the requisite diligence. Because

Banuchi did not demonstrate why the new evidence she wished to

cite in her third amended complaint was unavailable to her before

the passing of the deadline to amend, and because the evidence had

been “readily available” for years through public record or discov-

ery requests, the district court denied her motion for leave to

amend.

Later, the district court granted summary judgment in favor

of the City and Green. Two counts remained before the district

court at this stage: a section 1983 claim alleging excessive force

against Green under the Fourth Amendment, and a state-law

wrongful death claim asserted against Green and the City. As to

the Fourth Amendment claim, the district court determined Green

was entitled to qualified immunity because (1) Green was “acting

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within the scope of his discretionary authority when the allegedly

wrongful act occurred,” and (2) Banuchi failed to carry her burden

1

to show that Green’s conduct “violated a constitutional right.”

As to Banuchi’s state-law wrongful-death claims, the district

court concluded that both Green and the City were immune under

Florida law. Banuchi failed to identify “any” action taken by Green

that amounted to “bad faith or with malicious purpose or in a man-

ner exhibiting wanton and willful disregard of human rights, safety,

or property.” Similarly, Banuchi’s state-law wrongful death claim

against the City was barred under Florida law because Banuchi

failed to show that Green’s use of force was unreasonable under

the circumstances. Florida law, the district court explained, pro-

vides that “an officer who ‘reasonably believes’ his use of force is

‘necessary to defend himself or herself or another from bodily

harm while making [an] arrest” is afforded a complete defense to

an excessive force claim. The district court concluded that Green

was entitled to a complete defense because Banuchi did not rebut

Green’s evidence that Foster gave flight, refused to comply with

Green’s commands, and pointed a gun at Green. And since Green

was entitled to a complete defense, the City was also entitled to a

complete defense.

1

The district court did not reach the third qualified-immunity question as to

whether Banuchi showed that the constitutional right was clearly established

at the time of the violation because the district court concluded that Green did

not violate a constitutional right.

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STANDARD OF REVIEW

We review an order on a motion to dismiss de novo. See

Sebastian v. Ortiz, 918 F.3d 1301, 1307 (11th Cir. 2019). “We review

de novo a grant of summary judgment.” Buckley v. Sec’y of Army,

97 F.4th 784, 792 (11th Cir. 2024). A district court’s decision to deny

leave to amend is reviewed for abuse of discretion. Smith v. Duff

and Phelps, Inc., 5 F.3d 488, 493 (11th Cir. 1993).

DISCUSSION

On appeal, Banuchi argues that the district court erred by:

improperly weighing the evidence in favor of Green and the City

when it granted them summary judgment; dismissing Banuchi’s

Monell claim in her first amended complaint; and denying her leave

to amend her Monell claim in a third amended complaint. We ad-

dress each issue below.

A.

Banuchi contends that the district court misapplied the sum-

mary judgment standard by weighing the evidence in Green and

the City’s favor. She argues that the testimony of several witnesses

who did not notice a gun in Foster’s hands proves that Foster did

not have a gun, and therefore, he could not have pointed it at

Green. Thus, Banuchi says, because the district court must weigh

the evidence in her favor, the district court erred by granting sum-

mary judgment for the City and Green.

Summary judgment is appropriate where the evidence es-

tablishes that there is no genuine dispute as to any material fact and

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the movant is entitled to judgment as a matter of law. Fed. R. Civ.

P. 56(a). A district court must, on summary judgment, analyze the

evidence and inferences in the light most favorable to the nonmov-

ing party; here, Banuchi. See Skop v. City of Atlanta, 485 F.3d 1130,

1136 (11th Cir. 2007). At the same time, Rule 56 does not require

the district court to regard “mere allegations or denials” as a genu-

ine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). Rather, the nonmoving party must present “spe-

cific facts showing a genuine issue for trial” to overcome a finding

of summary judgment against her. Id. And where a district court

could not find in the nonmovant’s favor after reviewing the com-

plete record, there is no genuine issue for trial. See Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

Here, the evidence showed that Foster was a threat of seri-

ous harm to Green and others. See Brosseau v. Haugen, 543 U.S. 194,

197-98 (2004) (“[W]here the officer has probable cause to believe

that the suspect poses a threat of serious physical harm, either to

the officer or to others, it is not constitutionally unreasonable to

prevent escape by using deadly force.” (quotation omitted)). The

incident began with a 911 call reporting that a man was carrying a

gun near a park known for fights and shootings. When Green first

observed Foster, Foster was walking across the street from that

park, traveling in the direction mentioned in the 911 call, and

matching the caller’s description of the man. Foster appeared nerv-

ous and agitated, and Green observed something heavy weighing

down Foster’s shorts on one side. Given all of this, and to protect

himself, Green drew his own gun and approached Foster,

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commanding him to show his hands. See United States v. Aldridge,

719 F.2d 368, 371 (11th Cir. 1983) (“The use of a gun in connection

with a stop is permissible when the officer reasonably believes it is

necessary for his protection.”).

Foster refused to obey Green’s commands. Instead, Foster

ran from Green. Green pursued Foster, repeating his command

that Foster stop running and drop his gun, but Foster refused to

stop running. Then, according to Green, after Foster pointed his

gun at Green, Green opened fire on Foster. Investigators recov-

ered a firearm at the scene that Green said Foster dropped there,

and that another officer observed on the ground next to Foster

when he arrived at the scene. If undisputed, this evidence shows

that Green did not use excessive force in firing at Foster. See Hunter

v. City of Leeds, 941 F.3d 1265, 1279 (11th Cir. 2019) (“It is axiomatic

that when an officer is threatened with deadly force, he may re-

spond with deadly force to protect himself.”).

But Banuchi argues that the evidence is disputed. She points

to the testimony of three witnesses—Mays, Alexander Gutierrez,

and Julius Hall—who saw Foster running from Green while using

his hands to hold up his shorts. Banuchi explains that because these

witnesses did not observe Foster holding a gun while he ran “Rule

56 mandate[s] the district court construe the facts in the light most

favorable to [Banuchi] and accept the position that Foster was un-

armed and therefore pointed no gun at Green.” And Banuchi con-

tends that Green’s account conflicted with the autopsy report

showing that the bullets entered the back of Foster’s body back to

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front and left to right. These two matters, Banuchi maintains, cre-

ate issues of material fact that a jury must review.

We disagree. First, the three witnesses did not see the criti-

cal moments before and during the shooting, so their testimony

could not create a genuine issue on whether Foster pulled the gun

on Green before Green fired. Gutierrez admitted in his sworn

statement that he “couldn’t really actually see everything” because

“everything happen[ed] so fast.” Hall testified that his “vision [was]

blurred” because Foster ran around the building, and he agreed

that he lost sight of Foster when the stoplight turned green. And

Mays swore that he was around the corner when he heard the shots

were fired. The only testimony we have from the moments before

and during the shooting is from Green and he testified that Foster

pulled his gun and pointed it at Green. The gun found next to Fos-

ter corroborates Green’s testimony and nothing contradicts it.

Second, Banuchi is wrong about what the autopsy report

showed. The autopsy found that Foster was shot from the front in

his left upper arm and in his left thigh. And the autopsy report

found that Foster was shot on his right-side buttock. The shots, in

other words, were not all fired from back to front and left to right,

as Banuchi argues.

In the end, like the district court, we are left with the undis-

puted evidence that Foster had a gun and pointed it at Green before

Green fired. Based on this undisputed evidence, we must con-

clude, like the district court, that Green did not use excessive force

in his response to the threat of deadly force. The district court

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properly granted summary judgment for Green on Banuchi’s sec-

tion 1983 claim.

B.

Banuchi also contends that the district court erred in dismiss-

ing her Monell claim against the City and in denying her leave to

amend the Monell claim to add more allegations about the City’s

customs and practices. We disagree.

“To impose Monell liability, ‘a plaintiff must show: (1) that

his constitutional rights were violated; (2) that the municipality had

a custom or policy that constituted deliberate indifference to that

constitutional right; and (3) that the policy or custom caused the

violation.’” Underwood v. City of Bessemer, 11 F.4th 1317, 1333 (11th

Cir. 2021) (quoting McDowell v. Brown, 392 F.3d 1283, 1289 (11th

Cir. 2004)). In other words, “the plaintiff must demonstrate the

municipality’s policy or custom was the ‘moving force’ behind the

. . . constitutional violation.” Id. (citation omitted). But a custom

or policy “cannot be the ‘moving force’ of a constitutional violation

if there is no constitutional violation.” Turner v. Williams, 65 F.4th

564, 589 (11th Cir. 2023) (citation omitted).

That’s the case here. As discussed above, the evidence,

when viewed in the light most favorable to Banuchi, showed that

there was no constitutional violation. So whatever custom or pol-

icy Banuchi alleged in her first amended complaint or wants to al-

lege in a third amended complaint cannot be the moving force of a

constitutional violation under Monell—because there was none.

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Thus, any remand on the Monell claim would be futile because the

result would be the same—judgment for the City.

CONCLUSION

Foster’s death is a tragedy. But because “[i]t is axiomatic that

when an officer is threatened with deadly force, he may respond

with deadly force to protect himself,” Hunter, 941 F.3d at 1279, and

because it was undisputed that Green was threatened with deadly

force, the law requires that we affirm the summary judgment for

Green and the City. So we do.

AFFIRMED.