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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-15692 Non-Argument Calendar ________________________
D.C. Docket No. 2:16-cv-00066-LGW-RSB
GEORGE ALSTON,
Plaintiff - Appellant,
versus
CITY OF DARIEN, a municipality and county seat of McIntosh County, Georgia, DONNIE HOWARD, Individually and in his capacity as Chief of the Darien Police Department, ANTHONY BROWN, Individually and in his capacity as a Police Officer of the Darien Police Department,
Defendants - Appellees.
________________________
Appeal from the United States District Court for the Southern District of Georgia ________________________
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Before MARCUS, JILL PRYOR and FAY, Circuit Judges.
PER CURIAM:
After George Alston was arrested for a minor traffic violation, he brought
suit under 42 U.S.C. § 1983 against the officer who arrested him, the City of
Darien, Georgia (the “City”), and the Chief of the Police Department for the City.
Alston alleged violations of his civil rights, including his Fourth Amendment right
to be free from unlawful arrest, his Fourth Amendment right to be free from
excessive force, and his First Amendment right to be free from retaliation for the
exercise of constitutionally protected speech. The district court granted summary
judgment to the defendants on all of Alston’s claims. On appeal, Alston argues
that the district court erred in granting summary judgment to the officer and in
failing to impose sanctions on the defendants for the destruction of evidence. After
careful review, we affirm.
I. BACKGROUND 1
City of Darien Police Officer Anthony Brown conducted a traffic stop of a
car he saw driving on the highway with a dark tint on its windows. As Brown
approached the stopped car, he noticed that portions of its license plate were
1 On review of the grant of a defendant’s motion for summary judgment, we view the facts in the light most favorable to the plaintiff, resolving disputes of material fact in the plaintiff’s favor. Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002).
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obstructed, including the county’s name, the expiration date, and part of the state’s
name.
Brown tested the tint on the driver’s side windows to see if it violated
Georgia’s statute prohibiting the application of light-darkening materials to a
vehicle’s windshield or side windows. The windows were darker than allowed by
law. After he completed the test, Brown asked Alston, the driver, to hand over his
driver’s license, but Alston, who worked several contract jobs at the Federal Law
Enforcement Training Center, gave Brown his work identification instead. When
Brown told Alston that the work identification was not what he wanted, Alston
handed over his driver’s license.
During the entirety of this interaction, Alston was on the phone with his
wife. Alston recognized Brown because Brown previously had pulled over
Alston’s wife—who was driving the same car Alston was driving during this
incident—while Alston was a passenger. During that traffic stop, Alston’s wife
had received a citation for violating Georgia’s window tint statute.
Brown went back to his police car with Alston’s license and wrote two
citations, one for violating Georgia’s window tint statute and one for violating
Georgia’s statute prohibiting the obstruction of a license plate. Brown returned to
Alston’s car and handed him the citation for the window tint violation, which
Alston signed. Alston, who was still on the phone with his wife, then said “This is
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the reason I don’t come to McIntosh County because it’s fucked up over here.”
Doc. 22-4 at 22.2 Brown asked Alston to whom he was speaking, and Alston
replied only that he was on the phone. In response, Brown pulled out his taser,
held it in front of Alston’s chest, and ordered him out of the car.3
Alston got out of the car; Brown handcuffed him. As Brown adjusted the
handcuffs, Alston told him that the handcuffs were too tight, but Brown continued
to tighten them. 4 Alston began to curse at Brown.
After Alston was handcuffed, Officer Robbie Gault arrived to take Alston to
the McIntosh County jail. Alston overheard Brown tell Gault, “I’m getting him
because of how he acted in the car with his wife, and he was cussing me so I will
call his job and have him fired.” Doc. 24-6 at 28. Gault and Brown spoke for a
few minutes. Gault then drove Alston to the jail, which took three to four minutes.
During the drive, Alston asked Gault if he would loosen the handcuffs; Gault
refused.
When they arrived at the jail, it took Gault two to three minutes before he
removed Alston’s handcuffs. As he removed them, Gault remarked that Alston
was a “big guy” and that Brown “should have used two pair of cuffs.” Id. at 31.
2 Citations to “Doc. #” refer to the numbered district court docket entries. 3 According to Brown, he pulled out his taser after Alston failed to comply with his first order to exit the car. At this stage of the proceedings, however, we construe the facts in Alston’s favor. 4 Brown disputes that Alston alerted him that the handcuffs were too tight. 4 Case: 17-15692 Date Filed: 09/19/2018 Page: 5 of 18
Alston testified that it felt as though Brown had placed the handcuffs over the
metal bracelet on his right hand and across the face of the watch he was wearing on
his left hand. He explained that his left hand was swollen and he had bruises and
bleeding. Alston went to the hospital later that day. At a follow up appointment,
he was diagnosed with radial sensory nerve damage, which causes numbness and
tingling. The orthopedic surgeon who treated Alston testified that “to a reasonable
degree of medical probability . . . the handcuffs caused [the] problem.” Doc. 32-2
at 16.
After Alston left the jail, he wrote a report, which he delivered to the police
department, complaining about Brown’s treatment of him during the arrest. City
Police Chief Donnie Howard called Alston to discuss the complaint. Howard
asked Alston to return to the station and sign the complaint, but Alston did not do
so. Howard also told Alston that it would be Alston’s word against Brown’s, and
that Alston would have to take the matter to court.
Shortly after Alston’s arrest, Brown called Alston’s employer at the Federal
Law Enforcement Training Center to complain about Alston’s “misconduct” and
“cursing” during the traffic stop. Doc. 24-3 at 57. Alston was not disciplined as a
result of the call.
Alston sued Brown, Howard, and the City under 42 U.S.C. § 1983 for
violations of his civil rights, including violations of his First Amendment right to
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be free from retaliation for the exercise of constitutionally protected speech and
violations of his Fourth Amendment rights to be free from unlawful arrest and
excessive force. After discovery, the defendants moved for summary judgment on
all of Alston’s claims. Alston cross moved for summary judgment on his Fourth
Amendment claims. With regard to his claim that Brown had violated his Fourth
Amendment right to be free from excessive force, Alston contended that the dash
cam in Gault’s patrol vehicle had recorded part of the incident and that, despite
repeated requests for a copy of the video, Alston still had not received it.
Accordingly, Alston argued that evidence had been destroyed and summary
judgment should be granted in his favor. He argued in the alternative that he
should benefit from a presumption in his favor during trial because of the
defendants’ spoliation of evidence. The district court granted summary judgment
to the defendants on all counts and declined to impose sanctions for spoliation of
evidence. This is Alston’s appeal.
II. STANDARDS OF REVIEW
We review de novo the district court’s ruling on summary judgment,
viewing the facts in the light most favorable to the nonmovant. Hadley v.
Gutierrez, 526 F.3d 1324, 1328 (11th Cir. 2008). Summary judgment is
appropriate when there is “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). If the
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nonmoving party “fails to make a showing sufficient to establish the existence of
an element essential to that party’s case, and on which that party will bear the
burden of proof at trial,” then there is no genuine dispute as to any material fact
because “a complete failure of proof concerning an essential element of the
nonmoving party’s case necessarily renders all other facts immaterial.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
We review the district court’s decision regarding sanctions for the spoliation
of evidence for an abuse of discretion. Flury v. Daimler Chrysler Corp., 427 F.3d
939, 943 (11th Cir. 2005).
III. ANALYSIS
On appeal, Alston challenges the district court’s grant of summary judgment
to Brown. He also argues that the district court abused its discretion by imposing
no sanctions for spoliation of evidence. For the following reasons, we affirm the
district court’s grant of summary judgment to Brown and conclude that the district
court did not abuse its discretion by refusing to impose sanctions for spoliation of
evidence.5
5 Although Alston also sued Howard and the City, his appellate brief addresses only his claims against Brown. He thus has abandoned any argument that the district court erred in granting summary judgment to Howard or the City. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). 7 Case: 17-15692 Date Filed: 09/19/2018 Page: 8 of 18
A. The District Court Properly Granted Summary Judgment to Brown on Alston’s § 1983 Claims.
Alston first argues that the district court erred in granting summary judgment
to Brown on his § 1983 claims—that Brown violated his Fourth Amendment right
to be free from unlawful arrest, his Fourth Amendment right to be free from
excessive force, and his First Amendment right to be free from retaliation for the
exercise of constitutionally protected speech.
To prove a claim brought under § 1983, a plaintiff must show that he “was
deprived of a federal right by a person acting under color of state law.” Almand v.
DeKalb Cty., 103 F.3d 1510, 1513 (11th Cir. 1997). When defending against a
§ 1983 claim, however, a government official may assert the defense of qualified
immunity, which “allow[s] government officials to carry out their discretionary
duties without the fear of personal liability or harassing litigation.” Lee v. Ferraro,
284 F.3d 1188, 1194 (11th Cir. 2002). A government official asserting this
defense bears the initial burden of showing that “he was acting within his
discretionary authority.” Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir.
2007). Here, it is undisputed that Brown was acting within his discretionary
authority. Thus, the burden shifts to Alston to show that “(1) [Brown] violated a
constitutional right, and (2) this right was clearly established at the time of the
alleged violation.” Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264
(11th Cir. 2004). Viewing the facts in the light most favorable to Alston, we 8 Case: 17-15692 Date Filed: 09/19/2018 Page: 9 of 18
conclude that Alston has failed to meet his burden. Summary judgment properly
was granted to Brown on all of Alston’s claims.
1. Fourth Amendment Unlawful Arrest Claim
Alston first argues that Brown violated his Fourth Amendment right by
arresting him unlawfully. But Alston has failed to “demonstrate an issue of
material fact about whether [Brown] violated his constitutional right[]” to be free
from unlawful arrest. Mobley v. Palm Beach Cty. Sheriff Dept., 783 F.3d 1347,
1355 (11th Cir. 2015). Brown thus is entitled to qualified immunity. Id.
An arrest is lawful under the Fourth Amendment if the officer had probable
cause to arrest. Probable cause exists “when the facts and circumstances within the
officer’s knowledge, of which he or she has reasonably trustworthy information,
would cause a prudent person to believe, under the circumstances shown, that the
suspect has committed, is committing, or is about to commit an offense.” Lee, 284
F.3d at 1195 (internal quotation marks omitted). But in the context of § 1983, a
police officer may be entitled to qualified immunity even if there was no actual
probable cause for arrest; instead, an officer who raises a qualified immunity
defense will prevail if there was arguable probable cause. Durruthy v. Pastor, 351
F.3d 1080, 1089 (11th Cir. 2003). “Arguable probable cause exists where
reasonable officers in the same circumstances and possessing the same knowledge
as the Defendant could have believed that probable cause existed to arrest.”
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Rushing v. Parker, 599 F.3d 1263, 1266 (11th Cir. 2010) (internal quotation marks
omitted).
Here, Brown had actual probable cause—so he of course had arguable
probable cause—to arrest Alston for a violation of O.C.G.A. § 40-8-73.1(b),
Georgia’s statute prohibiting darkly tinted windows. Indeed, Alston admits that it
is “undisputed that [he]” violated the statute. Appellant’s Br. at 16. Alston argues,
however, that Georgia law gave Brown discretion either to issue Alston a citation
or to arrest him, see O.C.G.A. § 17-6-11, and that after Alston signed the citation,
Brown no longer had authority to arrest him because signing the citation was the
equivalent of posting bail, see O.C.G.A. § 40-13-2.1. Alston’s argument fails.
Assuming, without deciding, that Alston is correct that after he signed the citation,
Georgia law did not permit his arrest, “[t]here is no federal right not to be arrested
in violation of state law.” Knight v. Jacobson, 300 F.3d 1272, 1276 (11th Cir.
2002). Although “the violation of state law may (or may not) give rise to a state
tort claim, it is not enough by itself to support a claim under [§] 1983.” Id. So
even if Alston’s arrest violated the procedures established by Georgia law, it does
not follow that the arrest violated the United States Constitution. Because there is
no dispute that Brown had probable cause to arrest Alston for violating O.C.G.A.
§ 40-8-73.1(b), the arrest was lawful under the Fourth Amendment.
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In any event, even if Alston’s signature on the window tint citation made it
unlawful for Brown to arrest Alston for that offense, Brown also had probable
cause to arrest Alston for violating Georgia’s statute prohibiting obstruction of a
license plate. That statute prohibits any “apparatus that obstructs or hinders the
clear display and legibility of a license plate.” O.C.G.A. § 40-2-41. Undisputed
evidence showed that the county’s name, the expiration date, and part of the state’s
name were obstructed on Alston’s license plate. Brown thus had probable cause to
believe that Alston had violated the statute. See Wilson v. State, 702 S.E.2d 2, 4
(Ga. Ct. App. 2010) (explaining that a tag with an obstructed expiration date
violated O.C.G.A. § 40-2-41). 6
Alston argues that Brown cannot rely on the obstructed tag violation because
Brown admitted that he arrested Alston for the window tint violation. Alston insists
that any reliance on the obscured tag violation is a “fictional use.” Appellant’s Br.
at 20. We disagree. “[W]hen an officer makes an arrest, which is properly
supported by probable cause to arrest for a certain offense, neither his subjective
reliance on an offense for which no probable cause exists nor his verbal
announcement of the wrong offense vitiates the arrest.” Lee, 284 F.3d at 1196
6 Alston notes that the Georgia state court entered a nolle prosequi on the obstructed tag violation, but “the entry of nolle prosequi does not act as an acquittal.” Bell v. State, 672 S.E.2d 675, 676 (Ga. Ct. App. 2009) (internal quotation marks omitted). In light of the undisputed evidence that information on Alston’s license plate was obstructed, “we cannot conclude that the nolle pros[equi], in itself, is sufficient to create an issue of material fact” about whether Brown had probable cause to believe Alston had violated O.C.G.A. § 40-2-41. Lewis v. Ritz Carlton Hotel Co., LLC, 712 S.E.2d 91, 95 (Ga. Ct. App. 2011). 11 Case: 17-15692 Date Filed: 09/19/2018 Page: 12 of 18
(internal quotation marks omitted). Because probable cause existed for the
obstructed tag violation, Alston’s constitutional right to be free from unlawful
arrest was not violated, no matter the offense for which Brown subjectively
believed he was arresting Alston. Accordingly, Brown is entitled to qualified
immunity on the Fourth Amendment unlawful arrest claim.
2. Fourth Amendment Excessive Force Claim
Alston next argues that Brown violated his Fourth Amendment right to be
free from excessive force. Alston admits that if Brown lawfully arrested him,
Brown acted reasonably in handcuffing him. He asserts, however, that Brown
acted unreasonably when, in response to Alston’s complaint that the handcuffs
were “too tight,” Brown continued to tighten the handcuffs on top of Alston’s
watch and bracelet, causing additional pain. 7 But setting aside whether the force
used was excessive, Brown is entitled to qualified immunity because Alston has
not shown that Brown’s actions violated clearly established law.
“There are two ways for a party to show that the law clearly established that
a particular amount of force was excessive. The first is to point to a materially
similar case that has already decided that what the police officer was doing was
unlawful.” Id. at 1198 (internal quotation marks omitted) (alteration adopted).
The second is “to show that the official’s conduct lies so obviously at the very core
7 Alston makes no argument that Brown’s pulling out and holding a taser in front of his chest to effectuate the arrest constituted excessive force, so we do not address it. 12 Case: 17-15692 Date Filed: 09/19/2018 Page: 13 of 18
of what the Fourth Amendment prohibits that the unlawfulness of the conduct was
readily apparent to the official, notwithstanding the lack of case law.” Id. at 1199
(internal quotation marks omitted). Alston relies on the latter method.
“[T]he right to make an arrest . . . necessarily carries with it the right to use
some degree of physical coercion or threat thereof to effect it.” Graham v.
Connor, 490 U.S. 386, 396 (1989). We previously have held that a painful
handcuffing, during which the plaintiff “fell to his knees screaming that [the
defendant] was hurting him,” followed by a 10 minute trip to the police station,
was not unconstitutionally excessive force, even though the handcuffing loosened
the plaintiff’s internal surgical hardware from a preexisting injury, leading to 25
subsequent surgeries and amputation of the plaintiff’s arm. Rodriguez v. Farrell,
280 F.3d 1341, 1351 (11th Cir. 2002). Additionally, “a police officer need not
credit everything a suspect tells him,” especially “when the officer is in the process
of handcuffing [the] suspect.” Rodriguez v. Farrell, 294 F.3d 1276, 1278 (11th
Cir. 2002). We therefore cannot agree that it was “readily apparent” that
tightening the handcuffs over Alston’s watch or bracelet, even as Alston
complained about the tightness of the handcuffs, was unlawful. Lee, 284 F.3d at
1199. Alston thus has failed to show that Brown violated clearly established law,
and Brown is entitled to qualified immunity on that claim.
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3. First Amendment Retaliation Claims
Alston also argues that Brown violated his First Amendment rights by
(1) contacting Alston’s employer in retaliation for Alston’s complaint with the
police department, and (2) arresting Alston in retaliation for his constitutionally
protected speech at the scene of the traffic stop. For the reasons that follow, we
hold that the district court properly granted summary judgment on both of these
claims.
Alston’s claim that Brown violated his First Amendment right by contacting
his employer after he filed a complaint with the police department fails because
Alston has failed to create a genuine dispute of material fact about whether a
causal connection existed between Alston’s complaint and Brown’s phone call to
his employer. 8 “To state a claim for retaliation under the First Amendment, a
plaintiff must demonstrate that (1) he engaged in protected speech; (2) the
defendant’s conduct adversely affected the protected speech; and (3) a causal
connection exists between the speech and the defendant’s retaliatory actions.”
Bailey v. Wheeler, 843 F.3d 473, 480 (11th Cir. 2016). A defendant “adversely
affects protected speech if his alleged retaliatory conduct would likely deter a
8 Alston does not argue that the Brown contacted his employer in retaliation for his speech during the arrest, only that Brown contacted his employer in retaliation for the complaint Alston filed with the police department.
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person of ordinary firmness from the exercise of First Amendment rights.” Id. at
481 (internal quotation marks omitted).
Alston has failed to provide sufficient evidence of the third element—a
causal connection between his complaint and Brown’s retaliatory actions—because
the record reveals that Brown contacted Alston’s employer before Alston filed the
complaint.9 Alston argues otherwise, suggesting that Brown’s testimony that he
called Alston’s employer “the next day” established that Brown made the call the
day after Alston filed the complaint. Doc. 22-5 at 56. In context, Brown’s
deposition testimony was ambiguous about whether “the next day” referred to the
day after Alston was arrested or the day after Alston filed the complaint. Brown
later removed any ambiguity, however, when he was asked to clarify whether he
made the call after receiving the complaint. He responded: “No, no, no. That
wasn’t after I got the complaint.” Id. at 59. Brown could not have contacted
Alston’s employer in retaliation for a complaint he had not yet received. Alston
thus has failed to create a genuine dispute of fact about whether Brown violated
Alston’s First Amendment rights by contacting Alston’s employer.
As for Alston’s claim that Brown violated his First Amendment rights by
arresting him based on his constitutionally protected speech, this claim also fails.
9 Because Alston has failed to create a dispute of material fact about the third element, we do not address whether Alston’s speech was protected or whether Brown’s phone call to Alston’s employer adversely affected the protected speech. 15 Case: 17-15692 Date Filed: 09/19/2018 Page: 16 of 18
At the time of Alston’s arrest, there was no clearly established “right to be free
from a retaliatory arrest that [was] otherwise supported by probable cause.”
Reichle v. Howards, 566 U.S. 658, 665 (2012). Because, as we explained in Part
III.A.1, Brown had probable cause to arrest Alston, Brown is entitled to qualified
immunity on this claim.
B. The District Court Did Not Abuse Its Discretion In Failing to Impose Sanctions for Spoliation of Evidence.
Alston argues that the district court abused its discretion by declining to
impose sanctions for spoliation of evidence because—according to Alston—the
defendants destroyed Gault’s dash cam video tape, which would have shown a
portion of Alston’s interaction with Brown and Gault and supported his claim that
Brown used excessive force. He argues that the destruction of the video should
have led the district court to grant summary judgment in his favor on that claim or,
in the alternative, to draw an adverse inference against Brown.
“Spoliation is the destruction or significant alteration of evidence, or the
failure to preserve property for another’s use as evidence in pending or reasonably
foreseeable litigation.” West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779
(2d Cir. 1999). In determining the propriety of spoliation sanctions, courts
consider the following factors:
(1) whether the [moving party] was prejudiced as a result of the destruction of evidence; (2) whether the prejudice could be cured; (3) practical importance of the evidence; (4) whether the [spoiling party] 16 Case: 17-15692 Date Filed: 09/19/2018 Page: 17 of 18
acted in good or bad faith; and (5) the potential for abuse if expert testimony about the evidence was not excluded.
Flury, 427 F.3d at 945. 10 “In the Eleventh Circuit, an adverse inference is drawn
from a party’s failure to preserve evidence only when the absence of that evidence
is predicated on bad faith.” Mann v. Taser Int’l., Inc., 588 F.3d 1291, 1310 (11th
Cir. 2009) (internal quotation marks omitted). As such, “mere negligence in losing
or destroying records is not sufficient to draw an adverse inference.” Id.
The district court did not abuse its discretion in declining to impose
sanctions. Assuming, without deciding, that the dash cam video was in fact
destroyed, Alston has failed to show that he was prejudiced by its absence or that
the video had practical importance. Alston argues that the video “would speak for
itself and would either exonerate appellee Brown or show the extent of his
unlawful behavior.” Appellant’s Br. at 37. Alston’s concession that the video
might exonerate Brown fails to demonstrate the necessary prejudice. Moreover,
Alston testified about what happened on the scene of the arrest and during his
transport to the jail. The district court credited this testimony and determined that
summary judgment nonetheless was due to be granted to the defendants as a matter
of law. Alston thus was not prejudiced by the failure of the defendants to produce
the dash cam video. Alston has also failed to show the video was destroyed
10 Although the court in Flury analyzed Georgia spoliation law, “Georgia state law on spoliation is wholly consistent with federal spoliation principles.” Flury, 427 F.3d at 944. 17 Case: 17-15692 Date Filed: 09/19/2018 Page: 18 of 18
intentionally or in bad faith. The district court thus did not abuse its discretion in
declining to impose sanctions.
IV. CONCLUSION
For the reasons set forth above, we affirm the district court’s grant of
summary judgment to the defendants.
AFFIRMED.