[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 17

- 14769 Non

- Argument Calendar

________________________ D.C. Docket No. 2:16

- cv - 14476

- RLR

STEVEN KRAUS, Plaintiff

- Appellant,

versus MARTIN COUNTY SHERIFF'S OFFICE, WILLIAM D. SNYDER, Sheriff, Martin County Sheriff ’ s Office, MICHAEL GARGA N, DAVID SANSONE, Defendan ts

- Appellees.

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

________________________ (September 4, 2018) Case: 17-14769 Date Filed: 09/04/2018 Page: 1 of 152 Before MARTIN, JILL PRYOR , and NEWSOM , Circuit Judges. PER CURIAM: Following his arre st for a DUI, Steven Kraus brought this action alleging (1) excessive

- force claims under 42 U.S.C. § 1983 against Martin County Deputy Michael Gargan, Sergeant David Sansone, and Sheriff William Snyder , (2) state

law battery claims against Sansone and Gargan, and (3) a claim for deliberate indifference to serious medical needs under § 1983 against Snyder. The district court granted summary judgment in favor of each defendant as to all claims , concluding (1) that Sansone and Gargan were entitled to qual ified immunity on the excessive

- force claims and statutory immunity under Florida Statute 768.29(9)(a) on the state

- law battery claims, and (2) that Snyder was entitled to summary judgment because, as a matter of law, Kraus had not demonstrated deliberate indifference . After careful review , we affirm. 1

I Although according to Kraus, he had “been drinking and driving [his] whole life, ” 2 it wasn’t until 2012 that he was finally caught and arrested for DUI by Florida Highway Patrol Trooper R.E. Weber

. While in transport to the Martin

1 We review de novo the district court’s ruling on the motions for summary judgment, construing all facts and drawing all reasonable inferences in the light most favorable to Kraus. Perez v. Suszczynski , 809 F.3d 1213, 1216 (11th Cir. 2016). 2 See Dashcam Video at 28:10.

Case: 17-14769 Date Filed: 09/04/2018 Page: 2 of 153 County Jail for processing , Kraus repeatedly asked Weber to shoot him, telling Weber just to say that he tried to run away. Once at the jail, Weber reported these statements to Gargan and Sansone. During the booking process, Gargan removed Kraus’s handcuffs and asked him to put his hands on the counter in front of him. Gargan then asked Kraus to remove various personal items, while Sergeant Sansone watched nearby. Kraus admits that he threw his be lt and necklace on the counter during the process

— because, he says, he was angry that the officers had made derogato ry comments about his sexuality

. The parties disagree about what happened next. Kraus asserts that the officers instructed him to remov e his shoes and that when he removed his hands from the counter to comply they yelled at him to put his hands back on the counter.
He c ontends that he then turned calmly towards Gargan to respond to yet another comment about his sexuality , at which point Gargan “grabbed [him] by [his left] arm and the back of [his] neck, slammed [his] head down on the counter, placed ... both his legs behind [Kraus’s] legs, and held [him] there in a controlled position.” According to Kraus, even though he was completely subdued by Gargan’s maneuver, Sansone “took [his] right arm off the table, twisted it behind his back and ... lifted it straight over [Kraus’s] head in an unnatural manner before

Case: 17-14769 Date Filed: 09/04/2018 Page: 3 of 154 slamming [his arm] back down towards the table.” Kraus states that he “heard a snap immediately and knew that his arm had been broken ...” Unfortunately for Kraus, a video record ing of the booking process supports the officers’ contrary account. The footage shows Kraus take his han ds from the booking counter and turn toward Gargan. After this initial act of non

compliance

— which Kraus’s account omits

— Gargan put his hand on Kraus’s back and turned him toward the counter . Kraus then placed his hands on the booking
counter. The video then shows Kraus remove his shoes as instructed and thereafter place his hands back on the counter for a few seconds. But h e then removed his hands again and turned to face Gargan, at which point the officers reacted. Gargan grabbed Kraus’s left arm and maneuvered his upper body toward the booking coun ter, while Sansone secured Kraus’s right arm behind his back in an “arm bar.” Shortly thereafter, Kraus was given a breathalyzer test that showed his blood alcohol level was .151

- .156. He was then transported to Stuart Memorial Hospital where it was determined that a bone in his right arm had been broken. The hospital placed his arm in a sling. Kraus was then returned to the jail and placed in a cell. He was put on suic ide watch , and his sling was removed per Sheriff’s Standard Operating

Case: 17-14769 Date Filed: 09/04/2018 Page: 4 of 155 Procedure 6.04

- 3, which requires removal of all personal items of an arrestee on suicide watch. He was released from jail several hours later and transported to the Port St. Lucie Medical Center, where he was institutionalized pursuant to Florida’s Baker Act. He ultimately had surgery to repair his broken arm. On appeal, Kraus first challenges the district court’s qualified immunity determin ation because, he contends, (1) the district court misstated three legal standards governing the qualified immunity analysis and (2) clearly established law pu t defendants on notice that their actions violate d Kraus’s constitutional rights. Kraus then arg ues that the district court erred in concluding that the officers were entitled to statutory immunity for the state

- law battery claims. Finally, Kraus asserts that the district court impro perly granted summary judgment in favor of Snyder as to the deliber ate

- indifference claim.

II Qualified immunity protects government officials unless they violate “clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). Whether a defendant is entitled to qualified immunity is a question of law decided by the
court. Courson v. McMillian , 939 F.2d 1479, 1486

– 87 (11th Cir. 1991).

Case: 17-14769 Date Filed: 09/04/2018 Page: 5 of 156 In order to receive qualified immunity, the officers first must show that they acted within th e scope of their discretionary authority. Lee v. Ferraro , 284 F.3d 1188, 1194 (11th Cir. 2002). Because that is not disputed here, the burden shifts to Kraus to show that qualified immunity is inappropriate. Id . In order to meet his burden, Kraus must show (1) that the officers violated his constitutional rights and (2) that the illegality of their conduct was “clearly established” when the incident occurred. Pearson v. Callahan , 555 U.S. 223, 232 (2009). “These two steps do not have to be analyzed se quentially; if the law was not clearly established, we need not decide if the Defendants actually violated the Plaintiffs’ rights, although we are permitted to do so.” Fils v. City of Aventura , 647 F.3d 1272, 1287 (11th Cir. 2011). Kraus challenges two aspects of the district court’s qualified immunity ruling . First , as a threshold matter, Kraus contends that the district court misstated three legal standards governing the qualified immunity analysis. T hen separately

— and more generally

— Kraus argues that the officers were not entitled to qualified immunity for their actions because clearly established law should have put them on notice of a constitutional violation . We consider Kraus’s contentions in turn.

A

Case: 17-14769 Date Filed: 09/04/2018 Page: 6 of 157 Kraus asserts that the district court com mitted three discrete legal errors in its summary judgment order: (1) relying on an unpublished opinion in requiring him to show that the officers acted with a “sadistic or malicious purpose”; (2) relying on the same unpublished opinion in requiring him to cite case law with “indistinguishable facts” in order to show that the law was clearly established at the time of the incident; and (3) applying the wrong standard for interpreting the summary judgment facts in light of the video evidence.

1

Kraus first contends that the district court erred by citing to an unpublished decision, Shuford v. Conway , 666 F. App’x 811 (11th Cir. 2016) , for the proposition that Kraus had to “establish that [the officers] acted with a malicious or

s adistic purpose t o inflict harm.” He argues that the court cited the standard in error, as after the Supreme Court’s decision in Kingsley v. Hendrickson we now require plaintiffs pursuing an excessive

- force claim to show only that the use of force was objectively unreasonable. See 135 S. Ct. 2466, 2473 (2015).

Kraus misreads the district court’s order. Although it is true that the court cite d Shuford, it did so merely to state that “[i]n looking at what is clearly established, the Court is bound by the law at the time of the incident, ” Shuford , 666 F. App’ x at 817, which is clearly correct

. S ee, e.g., Anderson v. Creighton , 483

Case: 17-14769 Date Filed: 09/04/2018 Page: 7 of 158 U.S. 635, 639 (1987) ( w hether an official is protected by qualified immunity is “assessed in light of the legal rules that were clearly established at the time [the action] was taken”) (internal quotation marks omitted). The district court went on to state that, because the incident giving rise to this suit occurred before the Supreme Court’s ruling in Kingsley , Kraus would have to show that it was clearly established that the officers’ actions were unlawful under the pre

- Kingsley “sadistic and mal icious” standard. T hat is a correct statement of the then

prevailing law, and we will not disturb the court’s ruling on this ground.

2 Kraus next argues that the district court erred by requiring him to provide a case with “indistinguishable facts” in order to show that the officers violated clearly established law . Kraus again miscasts the district court’s ruling. Although the court did ask his counsel to provide it with a case with “indistinguisha ble facts,” it made clear both at the hearing and in its order that a plaintiff may show that a right is clearly established in three ways: (1) case law with “ indistinguishable facts, ” (2) “ a broad statement of principle within the Constitution, statute, o r c ase law that clearly establishes ” the right, or (3) “ conduct so egregious that a constitutional right was clearly violated, ” even in the absence of analogous case law. The court further clarified that the first way of showing a right is clearly established requires only that a plaintiff provide case law that is “materially

Case: 17-14769 Date Filed: 09/04/2018 Page: 8 of 159 similar.” Moreover, i t is clear from the district court’s order that its analysis was not limited to whether Kraus presented case law with “ indistinguishable facts ” ; rather, the order expressly considered and concluded that Kraus failed to satisfy his burden by way of any of the three methods for proving that a right was “clearly established.” A gain, thi s was a correct statement of the law, s ee, e.g., Jones v.
Fransen , 857 F.3d 843, 852 (11th Cir. 2017) (describing three ways plaintiff m ay demonstrate that a right is clearly established), and we see no reason to disturb the district court’s ruling on this basis

.
3

Kraus finally argues that the district court applied the wrong standard for using a video recording as the lens through which to view purportedly disputed facts at the summary judgment stage. Kraus contends , essentially, that the court was bound to accept his version of the facts unless they were “clearly contradicted” by the video evidence, and that because the court did not make an explicit finding that the video clearly contradicted his account , it must have applied the wron g standard.

T he district court was not required to make a n explicit finding that the video “clearly contradicted” his account before viewing the facts in light of the recording. T he Supreme Court has held that “[w]hen opposing parties tell two

Case: 17-14769 Date Filed: 09/04/2018 Page: 9 of 1510 different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for ruling on a motion for summary judgment.” S cott v. Harris , 550 U.S. 372, 380(2007). “For instance, when a video recording exists of the pertinent events

— as in this case

— we ‘ view[ ] the facts in the light depicted by the videotape.’” Jones v. Michael , 656 F. App ’ x 923, 926 (11th Cir. 2016) (quotin g Scott , 550 U.S. at 381). Kraus points to no case law emanating from either the Supreme Court or this Circuit that requires the district court to state explicitly that a video “clearly contradicts” a plaintiff’s version of events before viewing facts as having been established by a video recording

. Here, the district court clearly implied , correctly, that the video footage contradicted Kraus’s version of events. The court noted that “[t]he parties disagree about whether Plaintiff was being compliant d uring the booking process” before noting that “the video supports the officers’ description of the events.” The court then recounted the facts “in the light depicted by the videotape,” just as it has been instructed to do by both this Circuit and the Supr eme Court. So yet again, we are unpersuaded that the district court’s ruling should be disturbed on this basis

.
B Case: 17-14769 Date Filed: 09/04/2018 Page: 10 of 1511 Kraus a lso asserts that the o fficers were not entitled to qualified immunity for their actions. The district court determined that qualified immunity was appropriate because Kraus failed to show that the law was clearly established at the time of the incident. We agree.

Kraus contends that the law at the time of the incident clearly established

“ th at an officer may not apply physical force strong enough to cause serious injury when there is no legitimate safety threat and the citizen is compliant.” That is
correct as far as it goes. However, the rights clearly established by Kraus’ s cited

cases are of no benefit to him here. A s one might expect from the wording of his argument, each case that Kraus cite s for support involve s an appellant who was fully secured and not resisting in any way

. See, e.g. , Lee , 284 F.3d at 1199 (suspect arrested, handcuffed, and completely secured); Danley v. Allen , 540 F.3d 1298, 1309 (gratuitous force against a prisoner “who has clearly stopped resisting” unreasonable) ; Shuford , 666 F. App’x at 818 (need for force “had completely subsided” )

. And in fact, his cases even support the proposition that use of force
may be necessary to ensure an inmate’s compliance

. See, e.g ., Ort v. White , 813 F.2d 318, 325 (11th Cir. 1987) (“ Prison officers must ... have the authority to use that amount of force or those coercive measures reasonably necessary to enforce an inmate's compliance

... ”) ( i nternal quotation omitted). Because the district court found based on the video evidence

— and we agree

— that Kraus was non

- compliant

Case: 17-14769 Date Filed: 09/04/2018 Page: 11 of 1512 at the time of the officers’ use of force, these cases fail to clearly establis h that the officers’ actions were unconstitutional at the time of the incident. The district court, therefore, correctly concluded that the y were entitled to qualified immunity.

III Kraus next argues that the district court improperly granted summary judgment in favor of Gargan and Sansone on the state

- law battery claims. Under Florida Statute § 768.28(9)(a), no employee of the state will be h eld liable for a tort unless he “acted in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” Kraus asserts that the derogatory language used against him during the booking proc ess show s that the officers acted in b ad faith. As the district court concluded , however, words alone do not transform an acceptable use of force into one undertaken in bad faith. See Evans v. Stephens , 407 F.3d 1272, 1282 (11th Cir. 2005) ( holding that i t is the totality of the circumstances, and not words alone, that determines whether an action is unconstitutional). As Kraus did not show that Gargan and Sansone acted in bad faith, the district court correctly held that the y were entitled to immunity

u nder Florida Statute § 768.28(9)(a).

IV

Case: 17-14769 Date Filed: 09/04/2018 Page: 12 of 1513 Finally, Kraus contends that the district court erred in granting summary judgment on his claims against Snyder. Snyder should be liable , Kraus says, because the sheriff’s office “routinely acted with deliberate in difference to officer use of force, because the custom and practice of the [sheriff’s office] encouraged [the officers’] use of excessive force, and because the [sheriff’s office] affirmatively ratified the conduct of [the officers] in this case.” Suing a municipal official in his official capacity

— as Kraus has done here

— is the functional equivalent of suing the municipality itself

. Owens v. Fulton Cty. , 877 F.2d 947, 951 n.5 (11th Cir. 1989). Municipalities may be found liable under § 1983 only when a plaintiff shows: “(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.” McD owell v. Brown , 392 F.3d 1283, 1289 (11th Cir. 2004). “ A policy is a decision that is officially adopted by the municipality, or created by an official of such rank that he or she could be said to be acting on behalf of the municipality ” and “ [a] custom i s a practice that is so settled and permanent that it takes on the force of law.” Sewell v. Town of Lake Hamilton , 117 F.3d 488, 489 (11th Cir. 1997) (internal citation omitted). Thus, in order to prove his claim, Kraus must show that there was a policy or custom of excessive use of force at the Martin County Sheriff’s Office. This he fails to do.

Case: 17-14769 Date Filed: 09/04/2018 Page: 13 of 1514 Kraus first asserts that Snyder is liabl e under a ratification theory, which allows a municipality to be held liable when it “actively endors[es] or approv[es ] of the conduct of its employees or officials.” Garvie v. City of Ft. Walton Beach, Fla. , 366 F.3d 1186, 1189 (11th Cir. 2004). However, “ [ w ] hen plaintiffs are relying not on a pattern of unconstitutional conduct, but on a single incident, they must dem onstrate that local government policymakers had an opportunity to review the subordinate ’ s decision and agreed with both the decision and the decision ’ s basis before a court can hold the government liable on a ratification theory. ” Salvato v. Miley , 790 F .3d 1286, 1296 (11th Cir. 2015) . Here “[t]he sheriff did not review any part of [the officers’] actions before they bec[a]me final, much less approve the decision and the basis for it.” Id

. (internal quotation marks omitted). Kraus therefore may not pursue his claims against Sheriff Snyder under a ratification theory. Nor can his claim succeed under a theory that the sheriff’s office was deliberately indifferent to excessive

- force complaints filed against its officers. To show deliberate indifferenc e, “a plaintiff must present some evidence that the municipality knew of a need to train and/or supervise 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 ). Kraus argues, essentially, that the sheriff’s office knew that it needed to better supervise Sansone because of previous

Case: 17-14769 Date Filed: 09/04/2018 Page: 14 of 1515 excessive

- force complaints against him and that it failed to investigate and follow up on th ose complaints. T he record shows , howe ver, that the sheriff’s office investigated each claim made against Sansone and, in the one incident he was found to have used excessive force, suspended him without pay. Gargan had no incidents in which he was found to have used excessive force. The dis trict court, therefore, was correct in concluding that “there are insufficient facts in the record to show that the Sheriff’s Office was aware of, and deliberately indifferent to, a custom of using excessive force.”

V For the foregoing reasons, t he judgment of the district court is AFFIRMED

. Case: 17-14769 Date Filed: 09/04/2018 Page: 15 of 15