[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 18-10108

Non-Argument Calendar

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D.C. Docket No. 8:15-cv-02272-CEH-JSS

MARK J. LANDON, 

 Plaintiff - Appellant,

versus

CITY OF NORTH PORT, 

 Defendant - Appellee,

KEVIN VESPIA,

in his Official Capacity as Chief of Police of North Port Police, et al.,

 Defendants.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(November 13, 2018)

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Before MARTIN, ROSENBAUM, and JILL PRYOR, Circuit Judges.

PER CURIAM: 

When North Port Police Department (“NPPD”) officers found Mark Landon 

in the woods, he was naked except for his underwear, suicidal, bleeding heavily 

from a self-inflicted wound, and laying on the ground. Concerned for their safety

due to reports that Landon possessed a knife, the officers decided not to approach 

him. Instead, they ordered a K-9 dog to bite him. The bite wounds later became 

badly infected and required months of medical treatment and surgical intervention. 

After this encounter, Landon sued the City of North Port (the “City”), alleging 

violations of his Fourth Amendment rights under 42 U.S.C. § 1983 based on the 

officers’ use of excessive force.

The district court granted the City’s motion for summary judgment. The 

court found there was no genuine dispute that the officers’ use of force was 

reasonable and therefore not excessive. After careful review, we reverse and 

remand for further proceedings.1

 

I.

 1 We sua sponte grant rehearing in this case, withdraw the previous opinion filed on 

September 10, 2018 and appearing at — F. App’x —, 2018 WL 4293324 (11th Cir. 2018), and 

issue this opinion in its place. See, e.g., Mockeviciene v. U.S. Att’y Gen., 237 F. App’x 569, 

570 (11th Cir. 2007) (per curiam) (unpublished). Landon’s petition for rehearing en banc is 

therefore denied as moot. In addition, the previous opinion may not be cited by or to this court 

or any district court of the Eleventh Circuit. 

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During the early evening hours of July 20, 2014, Landon was depressed and 

suicidal. He entered the screened garage of the home he shared with his mother, 

grabbed a knife, and slashed his left wrist multiple times. The cuts completely 

transected his ulnar artery. His mother, Rose Landon (“Mrs. Landon”) discovered 

him soon thereafter in the garage. She realized Landon was bleeding heavily from 

the deep cuts he made to his wrist, and began screaming. 

Her screams attracted the attention of Landon’s brother-in-law, Peter 

Madish, who lived next door. Sensing something was wrong, he rushed over to her 

garage and saw an undressed Landon standing some distance away with a knife in 

his hand. Madish thought Landon was under the influence of either drugs or 

alcohol. Madish then went into the garage, put Landon in a headlock, and wrestled 

the knife away. After losing control of the knife, Landon fled. In the meantime, 

Mrs. Landon dialed 9-1-1 and informed the operator that her son was trying to kill 

himself. 

Officers Dino Murges and Keith Bush were dispatched to the scene. When 

they arrived, they found Madish standing in the driveway of his home. From him, 

the officers learned that Landon was suicidal, likely intoxicated, and bleeding 

badly from a self-inflicted injury. Madish also informed the officers that Landon 

grabbed another knife before fleeing. Mrs. Landon told the officers a similar story. 

The officers separately observed blood in the driveway of the Landon home and 

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garage, with a significant amount of blood on the concrete outside. Based on their 

observations and the statements of both Madish and Mrs. Landon, Officers Murges 

and Bush knew Landon was “bleeding profusely.” 

Officer Bush, a K-9 officer, suggested using his K-9 dog, Tomy, to track 

Landon down. Landon was not suspected of a crime, but the officers wanted to 

locate him to make sure he was okay. Officer Murges agreed to serve as backup. 

Using Tomy, the officers eventually tracked Landon to a wooded area, where he 

lay on the ground, partially concealed by a bush and clad in only his underwear. 

The officers came to a stop approximately fifteen feet away from Landon and 

ordered him to show his hands. Officer Murges also immediately drew his firearm 

and trained it on Landon. 

The parties dispute what happened next. Officers Bush and Murges testified

at their depositions that Landon was laying on his side and rolled further into a 

fetal position after being ordered to show his hands. The officers warned Landon 

they would release a K-9 dog on him if he did not comply with their demands. 

Officer Murges additionally testified that Landon responded at one point by yelling

or screaming “Oh,” and something else that Murges “couldn’t exactly hear.” In 

contrast, Officer Bush testified that Landon never said anything or made any noise 

in response to their commands. Both Officer Murges and Officer Bush

acknowledged that Landon never made any movements towards them, and Officer 

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Murges recalled that Landon was “obvious[ly]” bleeding. Nonetheless, Officer 

Murges thought Landon was coherent and actively concealing himself from the 

officers. Officer Bush also thought Landon was actively resisting commands. 

Landon, on the other hand, says he never responded to the officers and was 

unconscious at the time. Although he has no memory of the incident, he 

introduced expert testimony from Dr. Michael VanRooyen, who opined that 

Landon’s likely Glasgow Coma Scale (“GSC”) score of 7 at the time meant 

Landon was “only minimally responsive” and capable of non-responsive 

movement and/or groaning and moaning. Dr. VanRooyen testified that he did not 

think Landon’s GSC score was affected by the dog bite. Several other officers 

who arrived at the scene after the bite gave deposition testimony that Landon was 

unresponsive, motionless, and bleeding. 

The parties do not dispute that Officer Bush gave Tomy the command to bite 

Landon.2

 In response, Tomy sank his teeth into Landon’s abdomen and pulled

Landon onto his back, at which point Officer Bush realized Landon was unarmed 

and ordered Tomy to release Landon. Neither is it disputed that Tomy’s bite 

punctured Landon’s abdomen in two places and that no knife was ever located in 

the area Landon was found. Although Landon ultimately received medical 

 2 Officer Bush explained at his deposition that deploying a taser was not an option 

because the wires would be obstructed by the brush. He also testified that he was afraid to 

approach Landon out of fear he would be stabbed. 

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attention for the injuries to his wrist and abdomen, the bite punctures became 

infected and required extensive medical care. 

Landon sued the City in the United States District Court for the Middle 

District of Florida on September 30, 2015. His amended complaint asserted two 

claims under 42 U.S.C. § 1983 based on excessive force in violation of the Fourth 

Amendment: failure to supervise and failure to discipline. His complaint also 

included a claim of battery under Florida state law. After discovery, the City 

moved for summary judgment. 

Landon responded in opposition to the City’s motion for summary 

judgment. Included with his responsive pleading were numerous exhibits in 

support of his opposition, including a transcript of Dr. VanRooyen’s deposition, 

Dr. VanRooyen’s expert report, and a new affidavit from Landon stating that he 

did not roll over on his side when Officer Bush ordered him to show his hands. 

The district court granted summary judgment in favor of the City. The court first 

rejected Landon’s new affidavit as a sham. Landon previously gave deposition 

testimony that he was unconscious during the encounter with the officers and could 

remember nothing of what transpired. Based on this testimony, the court 

concluded Landon was not competent to testify on the matters included in the new

affidavit because he could not have had personal knowledge of what took place

during the time he was unconscious. 

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The district court next found that Landon failed to point to a genuine issue of 

material fact about whether the officers used excessive force when Officer Bush 

ordered Tomy to bite Landon. Because there can be no municipal liability under 

42 U.S.C. § 1983 absent a constitutional violation (in this case, excessive force), 

the district court granted the City summary judgment on Landon’s failure to train 

and failure to discipline claims. Without any federal claims to adjudicate, the 

district court declined to exercise supplemental jurisdiction over Landon’s 

remaining state battery claim and dismissed that claim without prejudice. 

Landon timely appealed. 

II.

We review a district court’s decision to exclude an affidavit filed in 

opposition to a motion for summary judgment for abuse of discretion. See Reese 

v. Herbert, 527 F.3d 1253, 1265 (11th Cir. 2008); McCorvey v. Baxter Healthcare 

Corp., 298 F.3d 1253, 1256 (11th Cir. 2002). We review de novo a district court’s 

grant of summary judgment, viewing the facts and drawing all reasonable 

inferences in favor of the opposing party. Garczynski v. Bradshaw, 573 F.3d 1158, 

1165 (11th Cir. 2009). Summary judgment is only 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). 

III.

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Landon first argues the district court abused its discretion when it excluded 

his affidavit from consideration as both inconsistent with his deposition testimony 

and not based on personal knowledge. This argument is without merit. 

Landon stated at his deposition, “As far as I know, I was unconscious, so I 

don’t know what I could have done.” When pressed to explain what he meant, 

Landon admitted it was fair to say he “didn’t know what [he] did” in the woods. 

He also repeatedly testified that he could not remember what happened after he ran 

into the woods. He explained that his memory was foggy because he was “pretty 

much” “check[ed] out” and “dead” after he fled the garage. Landon even reiterated 

in his new affidavit that he never regained consciousness during the encounter with 

Officers Bush and Murges. 

Federal Rule of Civil Procedure 56(c)(4) requires that “[a]n affidavit or 

declaration used to support or oppose a motion must be made on personal 

knowledge, set out facts that would be admissible in evidence, and show that the 

affiant or declarant is competent to testify on the matters stated.” The district court 

did not abuse its discretion when it found, based on Landon’s deposition 

testimony, that he could not have possessed the personal knowledge required to 

make the claims he did in his new affidavit. Cf. DiStiso v. Cook, 691 F.3d 226, 

230 (2d Cir. 2012) (expressing concern that the parents’ deposition testimony was 

inadmissible because they did not have “personal knowledge of what occurred,” 

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and therefore may not have been competent to testify to the truth of what happened 

to their son). As the district court observed, Landon could not have been both 

unconscious and able to recall that he never “attempt[ed] to roll over onto his side 

when Officer Bush commanded him to show his hands.” Thus, Landon necessarily 

lacked personal knowledge of his movements, and the district court’s exclusion of 

his affidavit was proper. 

IV.

We agree with Landon, however, that the district court erred when it granted 

summary judgment for the City on his 42 U.S.C. § 1983 claims. 

Plaintiffs seeking to hold a municipality liable for constitutional violations 

under § 1983 must prove first, that there was a constitutional violation, and second, 

that the violation was a product of the municipality’s “official policy” or 

“unofficial custom or practice.” Grech v. Clayton Cty., 335 F.3d 1326, 1329 (11th 

Cir. 2003) (en banc) (quotation marks omitted). Here, the district court did not 

reach the second inquiry because it found Landon failed to introduce a genuine 

dispute of material fact that the officers violated his constitutional rights by 

engaging in excessive force. The district court’s assessment of the evidence

missed the mark. Our review of the record reveals a genuine dispute of material 

fact as to what information the officers had when Officer Bush ordered Tomy to 

bite Landon. This, in turn, implicates the core question of whether the officers’ use 

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of force was objectively reasonable. As a result, the district court’s grant of 

summary judgment to the City was not appropriate. 

Where, as here, there is a claim of excessive force under the Fourth 

Amendment, we must ask whether the officers’ actions were “objectively 

reasonable in light of the facts and circumstances confronting them, without regard 

to their underlying intent or motivation.” Garczynski, 573 F.3d at 1166–67 

(quotation marks omitted) (quoting Graham v. Connor, 490 U.S. 386, 397, 109 S. 

Ct. 1865, 1872 (1989)). An officer’s good intentions do not “make an objectively 

unreasonable use of force constitutional.” Graham, 490 U.S. at 397, 109 S. Ct. at 

1872. Although we “must resist the temptation to judge an officer’s actions with 

the 20/20 vision of hindsight,” Garcynski, 573 F.3d at 1167 (quotation marks 

omitted), we are not required to close our eyes to evidence that circumstances at 

the time may have rendered an officer’s actions objectively unreasonable. Instead, 

we must pay “careful attention to the facts and circumstances of each particular 

case, including the severity of the crime at issue, whether the suspect poses an 

immediate threat to the safety of the officers or others, and whether he is actively 

resisting arrest or attempting to evade arrest by flight.”3

 Graham, 490 U.S. at 396, 

109 S. Ct. at 1872. 

 3 “Because this situation does not involve a criminal arrest, our facts do not fit neatly 

within the Graham framework.” Mercado v. City of Orlando, 407 F.3d 1152, 1157 (11th Cir. 

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The City urges us to affirm the district court’s ruling because it was “hardly 

unreasonable for Officer Bush to deploy Tomy” when the officers thought Landon 

possessed a knife and was actively resisting commands. This argument, however, 

fails to fully credit Landon’s evidence, which we are required to do on summary 

judgment. Although it is uncontested that Officers Bush and Murges thought 

Landon was armed with a knife when they found him in the woods, Landon 

introduced evidence that they were also aware he was clad in nothing more than 

his underwear and bleeding profusely from a self-inflicted wound. In addition,

Landon was not suspected of committing a crime. Last, and drawing all inferences 

in Landon’s favor, there is evidence that even if the officers thought Landon 

possessed a knife, they could not have reasonably thought he was in any condition 

to use the knife. This evidence is sufficient for Landon’s case to survive summary 

judgment. 

To begin, there is substantial evidence suggesting that the officers could not 

have reasonably thought Landon posed an immediate threat to their safety or that 

of others. First, the officers were aware Landon was bleeding profusely. The City 

asserts that “the officers . . . had no way of discerning how much blood Landon 

had lost.” But it matters little that neither Officer Bush nor Murges could have 

known that Landon had cut through his artery. Both officers testified they 

 

2005). Nonetheless, the Graham factors help guide our inquiry as to whether the officers’ use of 

force in these circumstances was objectively reasonable. See Mercado, 407 F.3d at 1157. 

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observed blood on the scene. Beyond that, Officer Murges testified there was 

blood in the driveway, the garage, and the concrete outside, and that it was 

“clear[]” from the evidence Landon was “bleeding profusely.” It was also 

“obvious” to Officer Murges that Landon was still bleeding when the officers 

found him in the woods. 

The officers further acknowledge that Landon never made any movements 

toward them, and to the extent he moved, it was only to curl further into a “fetal” 

position. Officer Bush also testified no one informed him Landon “was trying to 

harm anyone other than himself” and that Landon was not suspected of committing 

a crime. Viewing the evidence in the light most favorable to Landon and drawing 

all inferences in his favor, the officers ordered a dog to bite Landon from a 

distance of fifteen feet away even though Landon posed no threat to them and, 

indeed, appeared significantly incapacitated due to substantial blood loss. Landon 

did not physically move toward the officers and, based on Officer Bush’s 

testimony, offered no verbal resistance whatsoever. In fact, Landon may have 

made no “verbal noises,” much less statements, at all. 

Neither is it clear from the record that Landon was capable of rolling over 

and curling into himself, as the officers recounted. Dr. VanRooyen testified 

Landon’s GSC score was 7 when he received medical assistance, meaning he was 

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only “minimally responsive.”4 Dr. VanRooyen also testified he did not think

Landon’s GSC score was different before the dog bite, and that someone with a 

GSC score of 7 could “appear to be conscious but obtunded,” due to his or her 

ability to move non-purposefully. Whether that non-purposeful movement could 

include curling into a fetal position remains an open question. However, two 

officers who arrived at the scene later testified that Landon was unresponsive and 

motionless when they saw him. On a motion for summary judgment, it is 

reasonable to infer from this evidence that Landon may not have moved at all in 

response to the officers’ commands, and that even if he had, his movements would 

have appeared lethargic or deadened. In other words, while the officers may have 

had reason to think Landon was armed with a knife, there is also evidence that they 

could not have reasonably thought Landon was in any condition to use the knife. 

In addition, Landon’s expert, Kyle Heyen, opined in his report that the 

officers could have used a number of less forceful means to secure Landon.5

 

According to Heyen, the officers could have moved closer to Landon or attempted 

to change their position to get a better view of his face and hands rather than 

immediately resorting to a dog bite. Heyen also said the officers could have waited 

 4 According to Dr. VanRooyen, the GSC scale ranges from 3 (“utterly unresponsive”) to 

15 (“completely alert”). 

5 Heyen is a former police officer and law enforcement canine trainer, who has testified 

in a number of cases. The district court assumed for purposes of summary judgment that Heyen 

was qualified and his report and deposition testimony admissible, as do we. 

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for backup, which was already on the way, and arranged for a distraction. A 

distraction maneuver would have taken “seconds” to employ, and would have 

involved having one officer distract Landon with loud commands while a second 

officer moved close enough to deploy a device such as a taser to subdue him. Last, 

the officers could have moved closer to Landon and tased him even without a 

distraction, given that Landon was not suspected of a crime and had made no 

threatening movements towards them. Officer Bush was standing fifteen feet away 

from Landon when he ordered Tomy to bite. However, a taser has a range of 

twenty-five feet. Although Officer Bush testified that tasers are less accurate the 

further away an officer stands from a subject, there was nothing preventing him 

from moving a few feet closer to increase the likelihood he could successfully 

subdue Landon by tasing him in the leg or torso. Instead, rather than attempt any 

of these options, Officer Bush ordered Tomy to bite Landon while he was still 

standing a full fifteen feet away and in no immediate danger of attack. 

Viewing the facts in this light, as we must on summary judgment, the 

officers violated Landon’s Fourth Amendment rights when they ordered Tomy to 

bite Landon—a man who was not wanted for a crime, posed no immediate threat to 

the officers, and appeared unconscious or significantly impaired by blood loss. 

See Mercado, 407 F.3d at 1157–58 (reversing grant of summary judgment where 

an officer shot the suicidal plaintiff in the head even though the plaintiff had made 

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no threatening moves toward the police, “was not actively resisting arrest,” and did 

not “pose[] an immediate threat to the officers at the time he was shot”). The state 

has “a compelling interest in preventing suicide,” id. at 1157, but this Court has

concluded before that an officer clearly engages in excessive force when he orders 

a dog to attack and bite a person who poses no threat of bodily harm to the officers 

and does not attempt to flee or resist arrest. See Priester v. City of Riviera Beach, 

208 F.3d 919, 927 (11th Cir. 2000).

Unlike in Priester, Landon was not suspected of a crime and may not have 

even appeared conscious when Officer Bush ordered Tomy to bite him. In 

addition, the officers had a range of less forceful means available to them. This is 

sufficient to cast doubt on whether Officer Bush’s use of force was objectively 

reasonable as a matter of law.6

 We therefore reverse the district court’s grant of 

summary judgment on Landon’s § 1983 claims and remand for further proceedings 

consistent with this opinion. 

REVERSED AND REMANDED. 

 6 The City characterizes Landon’s injury in this case as “unfortunate, though less 

unfortunate then his intended outcome upon entering the woods,” and argues that “an unfortunate 

outcome does not equate to unreasonableness.” This argument misapprehends the crux of 

Landon’s argument. That Landon sought to kill himself does not render the officers’ actions de 

facto reasonable simply because the injuries he suffered did not result in his death. More to the 

point, Landon’s argument is not that the officers violated his constitutional rights because they 

harmed him. Rather, he argues—correctly—there was sufficient evidence in the record to 

support his claim that the officers engaged in excessive force by inflicting serious injuries on him 

when there was no objective reason to do so. For this reason, we reverse the district court’s grant 

of summary judgment. 

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