[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 15

- 14343 Non

- Argument Calendar

________________________ D.C. Docket No. 4:14

- cv
- 00292

- MW

- CAS

JAMES BOYNTON,
Plaintiff

- Appellant,

versus CITY OF TALLAHASSEE, LINDSEY CAMERON, CURTIS NORTON, WAYNE ELLISON,
Defendants

- Appellees.

________________________ Appeal from the United States District Court for the Northern District of Florida

________________________ (May 24, 2016)
Before ED CARNES, Chief Judge , WILLIAM PRYOR , and FAY , Circuit Judges.
PER CURIAM:

Case: 15-14343 Date Filed: 05/24/2016 Page: 1 of 162 James E. Boynton suffered a diabetic seizure in a Tallahassee, Florida
gr ocery store . During the emergency medical response that followed, a police
officer tased him multiple times

. Boynton filed this lawsuit against that officer, two medics, and the City of Tallahassee , claiming that the incident violated his statutory and constitutio nal rights

. The district court dismissed some of his claims and granted summary judgment to the defendants on others. This is Boynton’s appeal.
I.
A. Boynton is a Type I diabetic. Although he has experienced diabetic seizures in the past, he does not wear a medical alert bracelet or anything else that would
make others aware of his condition

. In 2010 he collapsed in the checkout line of a Winn Dixie Supermarket

. He has no memory of what happened right after he collapsed, but we know from witnesses that a store employee called 911. Wayne Ellison and Lindsay Cameron, medics with Leon County Emer gency Medical
Services , responded around 1:12 p.m

. The y put Boynton, who was largely unresponsive, onto a stretcher and took him outside to their amb ulance

. Boynton regained consciousness in the ambu lance. Cameron asked him if he had used any illegal drugs , and he told her that he had not

. He did not tell the
medics that he was a diabetic , but he did ask them for a candy bar or something

Case: 15-14343 Date Filed: 05/24/2016 Page: 2 of 163 sweet. According to Boynton, Ellison responded by telling him that he was “about
to be Baker Acted”

— that is, taken into custody for an invo luntary psychiatric
observation under Florida law

. That frightened Boynton, and he tried to leave the
ambulance. When the medics tried to stop him , Boynton physically resisted them and a struggle ensued

. After a minute or two, the medics d ecided to exit the ambulance and call for help from law enforcement. A police dispatcher contacted Curtis Norton, a police
officer for the City of Tallahassee , and told him to “proceed to the scene with lights and siren because of a combative patient inside an ambulance.” When
Norton arrived around 1:24 p.m. , Cameron told him she thought Boynton might be “on illegal drugs.” Norton entered the ambulance and f ound Boynton lying on the
floor , wedged between the stretcher and the ambulance wall, clinging to the bottom
of the stretcher. 1 Norton told him to get onto the stretcher for treatment

. Boynton

1 In its order granting summary judgment to the defendants, the district court prefaced its account of the facts as follows: Mr. Boynton was at a Winn

- Dixie when he experienced a hypoglycemic episode that distorted his conduct and triggered an emergency medical response in which he was eventually tased. Unfortunately, Mr. Boynton does not remember much of it. The last thing he remembers before going into hypoglycemic shock is standing in line at the Winn

- Dixie. He did not regain consciousness until he was in the back of the ambulance. And so, the details of what happened in betwee n come from the Defendants. This section nonetheless pieces together what Mr. Boynton does remember and construes the evidence in the light most favorable to him.
Doc. 94 at 2

- 3 (c itations omitted). The parties in their briefs to this Court rely primaril y on Norton’s recollection of what happened after he arrived. For the purpose s of this appeal, we will accept the agreed

- upon facts from the parties’ briefs.

Case: 15-14343 Date Filed: 05/24/2016 Page: 3 of 164 responded with “slurred words that [Norton] couldn’t understand,” but he did not

move. Norton decided to take Bo yn ton into “protective custody,” but he did not
tell Boynton that. He hoisted Boynton onto the stretcher , where he lay on his
stomach with his arms tucked under his body and his head facing the ambulance
door. Norton ordered him to flip onto his back and turn around so that the medics
could treat him , but Boynton once again did not move
. Norton tried to move Boynton himself , but he was unable to get a solid grip because Boynton repeatedly “tens[ed] his arms and pull[ed] them close to his body

. ” At that point, Norton
decided to use his taser as a stun gun to “get control of [ Boynton ] so that he could be medically treated.” He did not give a ny verbal warning before using his taser.
When Norton tased him , Boynton “flopped” between the stretcher and the
ambulance floor

. Cameron, who was standing just outside , observed Boynton “screaming,” “yelling,” “jerking , ” and “go[ing] limp. ” According to Cameron, Boynton also said , “Okay, man, okay, man , ” and “Okay, I’ll get up,” after Norton
first tased him. When Boynton did not move onto the stretcher right away, Norton
tased him eight more times

— for a total of nine taser shocks cumulatively lasting
49 seconds

. 2 Boynton eventually complied with Norton’s order to lie on his back on the
stretcher. Norton then holstered his taser and handcuffed Boynton to the stretcher

.

2 The record does not disclose the total amount of time that elapsed from the first shock through the ninth.

Case: 15-14343 Date Filed: 05/24/2016 Page: 4 of 165 The medics returned to the ambulance, and Cameron began driving to the hospital
while Ellison resumed his assessment of Boynton’ s condition

. He discovered that Boynton’ s blood sugar was l ow and administered intravenous dextrose around
1:30 p.m
. Boynton w as treated and released from the hospital ; he was not charged with any crime. He alleges that being tased nine times caused neurological damage to his lumbar spine, resulting in pain and numbness in his right leg.
B. Boynton filed this lawsuit against the City of Tallahassee, Ellison, Cameron,
and Norton

. In his third amended complaint, which is the operative one for purposes of this appeal, Boynton asserted four federal claims: (1) a deliberate
indifference claim against Ellison, Cameron , and Norton under 42 U.S.C. § 1983 ; (2) a n excessive force claim against Norton under § 1983 ; (3) a municipal liability claim against the City under § 1983 ; and (4) a discrimination claim against the City
under the Americans with Disabilities Act (ADA) , 42 U.S.C. § 12132, and the
Rehabilitation Act of 1973 (RA) , 29 U.S.C. § 794

. He also asserted several state
law claims. The district court dismissed Boynton’s discrimination claim under Rule 12(b)(6) and his § 1983 deliberate indifference claim against Norton on the basis of qualified immunity. The court later granted summary judgment to the defendants

on Boynton’s remaining § 1983 claims . It held that the defendants had not violated

Case: 15-14343 Date Filed: 05/24/2016 Page: 5 of 166 any constitutional right , and that, if they had, they would be entitled to qualified immunity

. The district court declined to exercise supplemental jurisdiction over Boynton’s state law claims and dismissed them without prejudice. 3 He appealed

. II. Boynton first challenges the dismiss al of his ADA and RA discrimination
claim s against the City

. We review de novo the dismissal of a cla im under Rule 12(b)(6) , “ accepting the allegations in the complaint as true and construing them in the light most favorable to the plaintiff

. ” Butler v. Sheriff of Palm Beach Cty. , 685 F.3d 1261, 1265 (11th Cir. 2012). To survive a motion to dismiss, the plaintiff

must plead sufficient facts “to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal , 556 U.S. 66 2, 678, 129 S. Ct. 1937, 1949 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. We wi ll affirm the district court’ s dismissal of a claim for any reason supported by the record. Allen v. USAA Cas. Ins. Co. , 790 F.3d 1274, 1278 (11th Cir. 2015).
The ADA and the RA prevent public entities and the recipients of federal funding from discriminating against disabled indi viduals

. See Barnes v. Gorman , 536 U.S. 181, 184

– 85, 122 S. Ct. 2097, 2100 (2002). To state a claim for

3 Boynton does not appeal the dismissal without prejudice of his state law claims apart from appealing the dismissal of all his claims

.

Case: 15-14343 Date Filed: 05/24/2016 Page: 6 of 167 compensatory damages under either statute , 4 a private plaintiff must show that the
defendant acted “ with discriminatory intent.” McCullum v. Orlando Reg. Healthcare Sys., Inc. , 768 F.3d 1135, 1146

– 47 (11th Cir. 2014) ; see Delano

- Pyle v. Victoria Cty., Tex. , 302 F.3d 567, 574 (5th Cir. 2002) (“A plaintiff asserting a private cause of action for violations of the ADA or the RA may only recover compensatory damages upon a showing of intentional discrimination.”)

. That requires proof the defendant either intentionally discriminated against the plaintiff or was “deliberately indifferent to his statu tory rights.” McCullum , 768 F.3d at
1147 (quotation marks omitted). “To establish deliberate indifference, a plaintiff
must show that the defendant knew that harm to a federally protected right was substantially likely and failed to act on that likelihood.” Id. (quotation marks and
alteration omitted). In his third amended complaint, Boynton asserts that Norton’s actions were “intentional and/or deliberately indifferent” to his rights under the ADA and the
RA. But he does not allege any factual basis for that conclusion

. See Randall v.
Scott , 610 F.3d 701, 709

– 10 (11th Cir. 2010) (explaining that a legal conclusion must be supported by factual allegations to survive a motion to dismiss). Boynton alleges only that Norton should have recognized his erratic behavior as “consistent with [an individual] suffering a diabetic crisis. ” But that does not suggest Norton

4 Boynton sought both compensatory and punitive damages, but punitive damages are not available in pr ivate suits under either statute. See Barnes , 536 U.S. at 189 , 122 S. Ct. at 2103.

Case: 15-14343 Date Filed: 05/24/2016 Page: 7 of 168 actually knew that Boynton was disabled or knew that his actions were substantially likely to violat e Boynton’s rights under the ADA or the RA

. See
McCullum , 768 F.3d at 1147. Because he has not alleged any facts showing that
Norton acted intentionally or with deliberate indifference, we affirm the dismissal
of Boynton’s statutory discrimination claim s
. III. Boynton next challenges the district court’s grant of summary judgment to
the defendants on his constitutional claims under § 1983

. “We review de novo a district court’ s grant of summary judgment,” drawing “all inferences and review[ing] all evidence in the light most favorable to the non

- moving party.”
Ham ilton v. Southland Christian Sch., Inc. , 680 F.3d 1316, 1318 (11th Cir. 2012)

. “Summary judgment is appropriate when the record discloses no genuine issue of
material fact and that the mov ing party is entitled to judgment as a matter of law.” Harbert Int’l, Inc. v. James , 157 F.3d 1271, 1 277 ( 11th Cir. 1998)

. We “ will affirm a grant of summary judgment if it is correct for any reason.” United States v. $121,100.00 in U.S. Currency , 999 F.2d 1503, 1507 (11th Cir. 1993).
A. Boynton first contends that medics Ellison and Cameron treated his medical
need s w ith deliberate indifferen ce in violation of the Fourteenth Amendment

. To prevail on that claim, he must show (1) an object ively serious medical need; (2) the

Case: 15-14343 Date Filed: 05/24/2016 Page: 8 of 169 medics’ deliberate ind ifference to that need; and (3) that their i ndifference caused his injuries. 5 See Gilmore v. Hodges , 738 F.3d 266, 273

– 74 (11th Cir. 2013). T o prove deliberate indifference, Boynton must establish that the medics “subjectively knew of and disregarded the risk of serious harm, and acted with more than mere negligence.” Id. at 274. Nothing in the record suggests that the medics knowingly disregarded any risk associated with Boynton’s diabetes

. As soon as they tested his blood sugar
and found that it was low, they treated him with intravenous dextrose

. That was an effective course of treatment, and Boynton finds no fault with it. He appears to
argue , however, that the medics might have been able to treat him more quickly if they had not stopped to call for assistance from law enforcement

. I n some cases, evidence that a defendant delayed medical treatment can support a deliberate
indifference claim , “depend[ing] on the nature of the medical ne ed and the reason for the delay

. ” Harris v. Coweta Cty. , 21 F.3d 388, 393

– 94 (11th Cir. 1994). T his
is not one of those cases . T he medics began to assess Boynton as soon as they
arrived , and they withdrew and called for help only after he physically resist ed
them

. After No rton ’s intervention , the medics resumed their efforts right away

. Given the circumstances , no reasonable juror could conclude that the medics

5 Boynton must also show that he was in state custody while being treated

. See Wideman v. Shallowford Cmty . Hosp., Inc. , 826 F.2d 1030, 1034

– 35 (11th Cir. 1987). The parties disput e that issue , but because his claim fails on other grounds, we do not address it

.

Case: 15-14343 Date Filed: 05/24/2016 Page: 9 of 1610 treated Boynton ’s medical need s with indifference , much less deliberate
indifference

. 6

B

. Boynton next contends that Norton used excessive force when he repeatedly
tased him

. “We analyze a claim of excessive force under the Fourth Amendment’s ‘objective reasonableness’ standard.” Oliver v. Fiorino , 586 F.3d 898, 905 (11th Cir. 2009) (citation omitted)

. To decide whether the force used was reasonable, we
examine “(1) the need for the application of force , (2) the relationship between the need and amount of force used, and (3) the extent of the injury inflicted.” Draper

v. Reynolds , 369 F.3d 1270, 1277

– 78 (11th Cir. 2004) (footnote omitted)

. The
amount of force used must be “reasonably proportionate to the need for that force,
which is measured by the severity of the crime, the danger to the officer, and the risk of flight. ” Id. at 127 7 n.13. We consider the totality of the circumstances
from the perspective of a reasonable officer on the scene , not “with the 20/20 vision of hindsight.” Oliver , 586 F.3d at 905 (quotation marks omitted)

.

6 Boynton also argues that the medics should be held liable for the injuries he suffered when Norton tased him because, he claims , Cameron lied to Norton about Boynton’s drug use , which influenced Norton’s decision to tase him . What Cameron actually said is that she thought Boynton might be on illegal drugs. The evidence that Boynton points to would not support a reasonable inference that Cameron did not have a good faith belief that Boynton was on illegal drugs

. See Ave. CLO Fund, Ltd. v. Bank of Am., N.A. , 723 F.3d 1287, 1294 (11th Cir. 2013) (“All reasonable inferences arising from the undisputed facts should be made in favor of the nonmovant, but an i nference based on speculation and conjecture is not reasonable.”).

Case: 15-14343 Date Filed: 05/24/2016 Page: 10 of 1611 When we view the evidence in the light most favorable to Boynton, Norton’s
use of force appears to be excessive

. He did respond to a call about a “ combative ” medical patient, b ut by the time he arrived Boynton was not combative at all

. In
fact , he was barely responsive, lying immobile on the floor of the ambulance.
When Norton told him to get onto the stretcher , Boynton did not move , b ut he also did not struggle or argue when Norton moved him

. Norton admits that the only

“ resistance ” he encountered was when Boynton “tensed” his body , making it
difficult for him to reposition Boynton on the stretcher

. In response, Norton tased Boynton nine times, eight of which were after Boynton had agreed to comply with
Norton’s demands

. Based on those facts , a reasonable juror could conclude that
Norton’s use of force was disproportionate to any threat Boynton posed and was
unreasonabl y excessive under the circumstances

. Norton emphasizes that the police department’s use of force policy a llows officers to use a “stun gun” on suspects who exhibit “active physical resistance,”
which is defined to include “bracing or tensing.” Two things about that. First, that policy does not guide our analysis

— the Fourth Amendment does. Second, we do

not suggest that “tensing” will never justify the use of a stun gun or taser under any
circumstances

. We hold only that from the evidence in the record a jury could find Norton’s use of a taser on Boynton nine times was unreasonable under the
circumstances

.

Case: 15-14343 Date Filed: 05/24/2016 Page: 11 of 1612 Norton contends that he is nonetheless entitled to qualified immunity , which protects government officials acting within their discretionary authority unless they
violate a “clearly established” right. Lee v. Ferraro , 284 F.3d 1188, 1193

– 94 (11th
Cir. 2002). The parties agree that Norton was acting within his discretionary authority. To decide whether a right is “clearly established,” we consider whether, based on the law applicable at the time of the alleged violation, it would have been
“clear to a reasonable officer that his conduct was unlawful in the situation he
confronted. ” Saucier v. Katz , 533 U.S. 194, 202, 121 S. Ct. 2151, 2156 (2001)

. When this incident occurred in 2010, it would have been.
In 2009 this Court considered the reasonableness of an officer’s repeated use
of a taser on an individual who was not a ccused of any crim e; who did not pose an
immediate threat to the officer or others ; who was not belligerent or aggressive ; and who was not trying to flee or evade arrest

. Oliver , 586 F.3d at 906

– 07. The
officer in Oliver deployed her taser “at least eight and as many as eleven or twelve times,” even after the individual was “immobilized,” “limp,” and “writhing in pain

. ” Id. at 908. Under those circumstances , we held that the officer was not entitled to qualified immunity because the force used was “so plainly unnecessary and di sproportionate that no reasonable officer could have thought that [it] was legal

. ” Id. In light of Oliver , a reasonable officer in Norton’s position would have
known that repeatedly tasing Boynton, who was not argumentative, aggressive , or

Case: 15-14343 Date Filed: 05/24/2016 Page: 12 of 1613 mobile, was unreasonable under the Fourth Amendment

. Norton is not entitled to qualified immunity on Boynton’s excessive force claim at this time

. 7
C. Finally, Boynton contends that the City is liable for Norton’s use of
excessive force

. “ To establish the liability of a city or county under section 1983, the plaintiff must show that [his] constitutional deprivation resulted from a custom, policy, or practice of the municipality.” Wideman , 826 F.2d at 1032. Boynton
tries to do that in two ways: First, he argues that the police department’s policies
condone the use of excessive force. Second, he argues that the police department
faile d to adequately train Norton

. Both arguments fail. In 2010 the Tallahassee police d epartment’s electronic control device policy provided that the “decision to deploy [a taser] shall involve an arrest or custodial situation during which the [subject] escalates resistance . . . from passive physical resistance to active physical resistance and the subject: (1) [h]as the apparent ability to physically threaten the officer or others, or (2) [i]s preparing to, or is attempting to, flee or escape.” T he department’s force continuum , in turn, defines “active physical resistance” as “physically evasive movements to defeat the

7 We note that the “facts, as accepted at the summary judgment stage of the proceedings, may not be the actual facts of the case.” Oliver , 586 F.3d a t 901 (quotation marks omitted). We hold only that the facts presented to us, when viewed in the light most favorable to Boynton, do not support Norton’s c laim of qualified immunity. The evidence at trial may, of course, prove otherwise. The district court can revisit the qualified immunity issue if it becomes appropriate to do so

. Case: 15-14343 Date Filed: 05/24/2016 Page: 13 of 1614 officer’s attempt at control,” including “bracing or te nsing, attempts to push or pull away, running away, or not allowing the officer to get closer .” When a suspect displays active physical resistance, an officer can “appl[y] a baton, stun gun, or flashlight (used as an impact weapon) to control the suspect

. ” Boynton first asserts that the department’s use of force policy encourages excessive force because it allows officers t o use a taser in response to “bracing or tensing.” As we have said, however, under a different set of facts , resistance like bracing or tensing might justify some limited use of a stun gun or taser

. See, e.g. , Draper , 369 F.3d at 1277

– 78 ( holding that an officer’ s “single use of [a] taser” to gain control of a “hostile, belligerent, and uncooperative” suspect did not violate
the Fourth Amendment ). Not only that, but the policy provides that officers “ are expected to use only that force reasonably necessary to effe ctively bring a suspect [or] incident under control

. ” That cannot be interpreted as condoning the repeated tasing of a n unresponsive medical patient lying face down on an ambulance
stretcher

. Boynton also points out that the deputy police chief testified that the use of force policy “just addresses compliance.” From that, Boynton argues that the department instructs its officers to continue applying force until a suspect complies
with their orders , which, he says, results in the use of excessive force

. But the deputy chief also testified that officers were only allowed to use force to gain

Case: 15-14343 Date Filed: 05/24/2016 Page: 14 of 1615 compli ance “subject to reasonableness.” Authorizing the continued use of reasonable force is not the same as authorizing the use of excessive force. In sum, Boynton has not shown that any department custom, policy , or practice endorsed or encouraged Norton’s use of excessive force in this case

. Boynton also claims that the Tallahassee police department failed to adequately train Norton in the use of force involving tasers and in identifying medical emergencies like diabetic seizures

. To hold a municipality liable under § 1983 for the failure to train its employees, the plaintiff must “present some evidence that the municipality knew of a need to train .

. . in a particular area and the municipality made a deliberate choice not to take any action.” Gold v. City of
Miami , 151 F.3d 1346, 1350 (11th Cir. 1998) (quotation marks omitted). Boynton has not provided any “evidence of a history of widespread prior abuse” in the department i nvolving either the use of tasers or the identification of medical emergencies that would have put the City “on notice of the need for im proved training and supervision ” in those area s
. Id. at 1351.
IV.
W e AFFIRM the district court’s dismissal of Boynton’s ADA and RA
discrimination cl aims; the district court’s grant of summary judgment to Ellison and Cameron on Boynton’s § 1983 deliberate indifference claim ; and its grant of summary judgment to the City on Boynton’s § 1983 municipal liability claim. We

Case: 15-14343 Date Filed: 05/24/2016 Page: 15 of 1616 REVERSE the district court’s grant of summary judgment to Norton on Boynton’s § 1983 excessive force claim

. Because the dismissal of Boynton’s state law claims was predicated on the judgment against him on all federal claims , we REVERSE
the district court’s dismissal of those state law claim s. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. Case: 15-14343 Date Filed: 05/24/2016 Page: 16 of 16