FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 MARCH 17, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-13143

Non-Argument Calendar

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D. C. Docket No. 06-21032-CV-ASG

MARK WHITTINGTON, 

Plaintiff-Appellant, 

versus 

TOWN OF SURFSIDE, FL, 

a municipality, 

PATRICK JOHN GIAMBALVO, 

individually, 

LUIS PEREZ, 

individually, 

Defendants-Appellees. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(March 17, 2008)
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Before CARNES, BARKETT and HULL, Circuit Judges.

PER CURIAM:

Mark Whittington appeals the district court’s order granting summary

judgment in favor of defendant Town of Surfside (“Surfside”) on Whittington’s 42

U.S.C. § 1983 claim that he was falsely arrested by Surfside police officers in

violation of the Fourth Amendment. After review, we affirm.

I. BACKGROUND

A. Whittington’s Arrest

We review the facts in the light most favorable to Whittington. 

On February 19, 2004, Whittington was waiting at a bus stop in Surfside. 

He leaned up against a concrete post which had a bus stop sign attached to it. 

When the wind blew, the sign became loose to some extent and hit Whittington in

the face. The force from the sign broke Whittington’s sunglasses. Whittington

then tore the sign from the post and threw it to the ground. Whittington alleges

that he did this so no one else could be injured by the sign.

Several teenagers at the bus stop laughed after seeing the sign hit

Whittington. Whittington had words with them, and they left the bus stop. 

Whittington observed one of the members of this group, who was later identified

as Chris Marco, stop and speak with Surfside police officer Luis Perez. According
In contrast to Whittington’s version of the events, Officer Perez stated in his report that 1

Whittington had already boarded the bus by the time he reached the bus stop.

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to Officer Perez’s police reports, Marco told him that he had observed a white male

wearing an orange Miami Hurricanes sweatshirt tear the bus stop sign from the

pole. Officer Perez then came and stood directly behind Whittington, whose

appearance matched Marco’s description, for the next several minutes until the bus

arrived. Officer Perez did not say anything to Whittington or stop him from 1

boarding the bus. 

Whittington boarded the bus and sat near the back of the bus. 

Approximately four or five blocks later, two Surfside police cars pulled up beside

the bus and pulled it over. Whittington overheard a conversation between two men

sitting near him who he assumed were construction workers based on their

clothing. Whittington claimed that one told the other, “I can’t take it. You take it. 

I’m on parole.” Whittington decided to walk toward the front of the bus.

Whittington thought that the police were stopping the bus because of his earlier

incident with the bus stop sign, and he also wanted to separate himself from the

two men.

After the bus stopped and Whittington started to exit the bus, he was

confronted by six police officers. One of the officers had his gun out and another

was holding a club. One officer said, “get off the bus, you God damn scumbag.” 
On appeal, Whittington argues briefly that the seizure of marijuana was the fruit of an 2

unlawful arrest and could not be used against him. Because Whittington did not raise this claim

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At this point, Whittington had not indicated that he would refuse to exit the bus or

tried to resist the officers in any way. 

Two officers, allegedly Officers Patrick Giambalvo and Perez, reached up,

grabbed him by the shirt in his chest area, and pulled him down from the bus. His

momentum carried him from the bus into some hedges in a yard, and the officers

fell on top of him. Whittington felt his knee pop as this happen. Whittington

indicated that, at this point, all of the officers present piled onto him. The officers

kept saying to him, “[g]o ahead, resist, come on, give us a reason.” The officers

handcuffed him and sat him on the sidewalk. 

Officer John Fiorito claimed that he observed Whittington throw a white

bottle as he walked toward the front of the bus and relayed this information to

Officer Giambalvo. Officer Giambalvo searched the bus and found a white bottle

that contained a small amount of marijuana. Whittington denies that this bottle

was his and assumes that it belonged to one of the two men who were sitting near

him on the bus. 

Whittington was arrested for possession of marijuana and criminal mischief

and issued a notice to appear in court. The charges against Whittington were

ultimately dismissed. Although the record reveals that the Assistant State 2
in the district court, we decline to address it. Access Now, Inc. v. Southwest Airlines Co., 385

F.3d 1324, 1331 (11th Cir. 2004) (stating rule that this Court generally will not consider an issue

on appeal that was not raised first in the district court). 

The district court dismissed with prejudice Whittington’s state law claims of negligence 3

and malicious prosecution against Surfside and his federal due process claims against Surfside,

Officer Perez, and Officer Giambalvo. Because Whittington does not challenge these dismissals

on appeal, these claims are now deemed abandoned. Access Now, Inc., 385 F.3d at 1330.

Specifically, the district court granted summary judgment in favor of the defendants on 4

Whittington’s claims against (1) Surfside for state law false arrest and false imprisonment and

under § 1983 for false arrest and substantive due process and equal protection violations; and (2)

Officers Giambalvo and Perez under § 1983 for false arrest, excessive force, and substantive due

process and equal protection violations. 

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Attorney dropped the charges against Whittington because the arresting officer

failed to appear in court, Whittington contends that Officer Perez was present on

his court date. 

B. Whittington’s Lawsuit

Whittington filed a complaint in Florida state court alleging multiple state

law and federal constitutional violations, including false arrest, against Surfside, as

a municipality, and Officers Perez and Giambalvo, individually. The defendants

removed the case to federal court and moved to dismiss Whittington’s complaint. 

The district court granted the defendants’ motion to dismiss in part and allowed

Whittington to reallege some of his claims in an amended complaint. After 3

Whittington filed a second amended complaint, the defendants moved for summary

judgment. The district court granted summary judgment for the defendants on all

claims. Subsequently, Whittington settled his claims against Officers Perez and 4
Because Whittington only appeals his § 1983 false arrest claim against Surfside, he has

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abandoned all other claims on appeal. Access Now, Inc., 385 F.3d at 1330. Further, his

“Summary of the Argument” and “Statement of Issues” pages only reference § 1983, and not

Florida state law, and thus we construe his brief as only appealing his § 1983 claim against

Surfside for false arrest. See APA Excelsior III L.P. v. Premiere Technologies, Inc., 476 F.3d

1261, 1269-70 (11th Cir. 2007) (concluding, based in part on examination of statement of issues

in initial brief, that issue was not clearly raised in initial brief and was thus abandoned). 

We review de novo a district court’s order granting summary judgment. Holloman v. 6

Mail-Well Corp., 443 F.3d 832, 836 (11th Cir. 2006).

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Giambalvo individually. This appeal involves only his § 1983 claim for false

arrest against the Town of Surfside.5

II. DISCUSSION6

In order to prevail in a § 1983 action, the plaintiff must show a deprivation

of a federal right by a person acting under color of state law. Griffin v. City of

Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). Municipalities and other local

government entities are included among those persons to whom § 1983 applies,

Monell v. Department of Social Services., 436 U.S. 658, 690-91, 98 S. Ct. 2018,

2036 (1978), but may not be held liable on a respondeat superior theory, Board of

County Commissioners v. Brown, 520 U.S. 397, 403, 117 S. Ct. 1382, 1388

(1997). 

Instead, to impose § 1983 liability on a municipality, a plaintiff must show:

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

policy or custom that constituted deliberate indifference to that constitutional right;
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and (3) that the policy or custom caused the violation. McDowell 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.” Sewell v. Town of Lake

Hamilton, 117 F.3d 488, 489 (11th Cir. 1997). A custom is a practice that is so

settled and permanent that it takes on the force of law. Monell, 436 U.S. at 691, 98

S.Ct. at 2036. 

It is unnecessary to address here whether Whittington’s constitutional rights

were violated by Surfside because he has failed to create a genuine issue of

material fact that there was a custom or policy in Surfside that caused the alleged

constitutional violation. Whittington stated the basis for § 1983 liability against

Surfside in his second amended complaint as follows:

PEREZ fabricated this charge because of a custom and policy that

existed in SURFSIDE wherein citizens such as plaintiff were harassed

by police officers without cause based on their nonconformist and

“hippie-like” appearance, all for the purpose of depriving plaintiff of

his substantive due process rights to be free from unlawful

infringement from unreasonable seizure by police authorities. This

Surfside policy of infringing on the rights of citizens such as plaintiff

took on the form of policemen “staring down” citizens as a form of

intimidation, fabricating witnesses and evidence, and knowingly and

purposefully failing to preserve evidence that would exculpate

accused citizens such as plaintiff. 

In support of his allegations of a custom or policy of police harassment in
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Surfside, Whittington proffers only the deposition testimony of current Surfside

Mayor Charles Burkett. In the deposition excerpts submitted by Whittington,

Whittington’s counsel questioned Mayor Burkett regarding a newspaper article

reporting on a September 2006 commission meeting in which Mayor Burkett was

quoted as saying that people in the past had told him that they were afraid of

Surfside police officers and that officers were “intimidating people with their look

and their stares.” Mayor Burkett testified that the quote could be accurate, but he

could not remember for sure if he had said it.

Mayor Burkett further testified that people complained to him about the

Surfside police, particularly an Officer Davis, when he was running for office in

2004. Mayor Burkett testified that he “was hearing that, you know, the S.W.A.T.

teams were coming to houses and harassing people and scaring them” and that his

reaction was that these tactics were “very heavy-handed.” Mayor Burkett further

testified that he was told that there would be police officers in full gear stationed at

every corner of the room at public meetings in Surfside and that his experiences at

meetings was that it “was not a happy situation.”

These anecdotes relayed to Mayor Burkett around the time he was running

for office in 2004 do not create a genuine issue of material fact that there was an

official policy or custom of harassment that caused Whittington’s alleged
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constitutional injury. Mayor Burkett’s testimony does not reference any citizen

complaints about Surfside police officers harassing individuals with a

“nonconformist” or “hippie-like” appearance, fabricating witnesses and evidence,

or failing to preserve evidence that would support Whittington’s claim that there

was an official custom or policy of such. To the extent that Mayor Burkett’s

deposition references a statement he made regarding complaints that police officers

were intimidating people with their stares, the referenced news article from

September 2006, which was a year and a half after the February 2004 incident

here, does not support Whittington’s claim that there was such a policy or custom

of intimidating people with stares in February 2004.

Further, the record contains an affidavit from Mayor Burkett in which he

states that he (1) held no public office in Surfside in February 2004 when the

alleged incident occurred; (2) had no personal knowledge of any Surfside police

internal customs or policies that existed on or before February 19, 2004; and (3) is

not aware of any instances or alleged instances of excessive force or false arrest by

the Surfside police department. Thus, Mayor Burkett’s own affidavit reveals that

he had no actual knowledge of Surfside police policies or customs in February

2004. Even if he did, his knowledge would not necessarily demonstrate that

Surfside officials were on notice of such official policies or customs so as to
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warrant holding Surfside liable here because Mayor Burkett was not a public

employee in Surfside in February 2004.

 Therefore, because Whittington has failed to create a genuine issue of

material fact that his alleged constitutional violation was caused by a municipal

custom or policy, we affirm the district court’s grant of summary judgment in

favor of Surfside.

AFFIRMED.