FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 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[DO NOT PUBLISH]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. 08-10403

Non-Argument Calendar

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D. C. Docket No. 06-14111-CV-KMM

EMMITT HARVEY,

Plaintiff-Appellant,

versus

CITY OF STUART, a municipality,

EDWARD M. MORLEY,

in his official capacity as Former Chief of the

City of Stuart Police Department,

WILLIAM B. JAQUES,

in his individual capacity and as an Officer for

the City of Stuart Police Department,

FLAMUR ZENELOVIC,

in his individual capacity and as an officer for

the City of Stuart Police Department,

Defendants-Appellees.

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Appeal from the United States District Court

for the Southern District of Florida

_________________________

(October 17, 2008)
Before ANDERSON, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:

Emmitt Harvey filed suit under 42 U.S.C. § 1983 against police officers

William Jaques and Flamur Zenelovic (collectively “the defendants”), in their

individual capacities, the City of Stuart (“the City”), and Chief of Police Edward

Morley, in his official capacity, for events relating to his arrest on November 22,

2002. Harvey, proceeding pro se, now appeals the district court’s orders

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dismissing various allegations against the City of Stuart and Chief of Police

Morley and granting summary judgment in favor of defendants Jaques and

Zenelovic. For the reasons stated below, we affirm.

I.

We first address the dismissal of Harvey’s claims against the City and the

Police Chief and his conspiracy allegation. These claims were properly dismissed.

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Section 1983 does not provide for vicarious liability. Cook ex. rel. Estate of

Tessier v. Sheriff of Monroe County, Fla., 402 F.3d 1092, 1115-1116 (11th Cir.

In his complaint, Harvey alleged false arrest, excessive force, battery, intentional infliction 1

of emotional distress and substantive due process violations arising from the use of force and police

brutality against all four defendants, inadequate training and supervision and custom and practice

of illegal conduct against Morley and the City, civil conspiracy by Jaques, Zenelovic, and the City,

and equal protection and due process violations against the City, Jaques, and Zenelovic arising from

racial profiling.

We review a 28 U.S.C. § 1915(e)(2)(B)(ii) and Rule 12(b)(6) dismissal de novo, viewing 2

the allegations in the complaint as true. Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008).

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2005). A municipality may be liable under § 1983 for the actions of a police

officer “only when municipal ‘official policy’ causes a constitutional violation.”

Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998) (quoting Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 694, (1978)). A plaintiff must “identify a

municipal ‘policy’ or ‘custom’ that caused [his] injury.” Id. (internal citation

omitted). Harvey failed to identify any policy or custom that caused a

constitutional violation, and his vague and conclusory allegations were insufficient

to support the complaint. See Fullman v. Graddick, 739 F.2d 553, 556-57 (11th

Cir. 1984). Thus, the claims for false arrest, excessive force, and due process and

equal protections violations by the individual officers are not cognizable against

the City.

As for the conspiracy claim, Harvey failed to allege facts that would, if

proven at trial, establish that the defendants had conspired to violate his

constitutional rights. Thus, the court properly dismissed the conspiracy claim.

GJR Investments, Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1370 (11th Cir.

1998) (holding that a complaint that fails to make particularized allegations that a

conspiracy existed in a § 1983 claim should be dismissed).

II.

We turn now to the district court’s order granting summary judgment in

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favor of the defendant police officers, Jaques and Zenelovic. This court reviews a

district court’s grant of summary judgment de novo, viewing the evidence in the

light most favorable to the party opposing the motion. Skrtich v. Thornton, 280

F.3d 1295, 1299 (11th Cir. 2002). Summary judgment is appropriate if the

pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show there is no genuine issue as to any material fact

and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P.

56(c); Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th Cir. 1990).

BACKGROUND

According to the evidence not in dispute, Harvey and a friend were outside a

rooming house around 10:00 pm on November 2002. Jaques and Zenelovic,

driving an unmarked vehicle with tinted windows, were in a high crime and high

narcotics trafficking area when they saw Harvey and an unidentified companion in

a dark alley in an area marked by a posted “No Trespassing” sign. The officers

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recognized Harvey from past interactions, knew that he did not live at that location,

and inferred that he was trespassing. Jaques and Zenelovic drove up to Harvey,

Although Harvey repeatedly asserts that he was not trespassing and had permission to be 3

at that location, he never disputes the existence and presence of No Trespassing signs. Faced with

the defendants’ affidavits that there were No Trespassing signs and Harvey’s failure to rebut this

evidence, we accept the defendants’ evidence as true. See Farrow v. West, 320 F.3d 1235, 1248-49

(11th Cir. 2003) (highlighting the need to rebut evidence in order to survive summary judgment).

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blocking his path and frightening him. As the officers exited the car, Harvey tried

to leave because the officers did not immediately identify themselves nor were they

wearing police uniforms. Jaques followed Harvey, identified himself as police,

and called for Harvey to stop. Jaques then tackled Harvey, knocking Harvey to the

ground and injuring his shoulder, knee, hand, foot, and toes. Zenelovic then came

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around the corner to assist, using a “hammer lock technique” to subdue Harvey.

This technique caused Harvey pain to his wrist, back, and shoulder. After being

handcuffed and arrested, Harvey was placed in the officers’ car. He complained of

pain and was taken to the emergency room, where he was treated for stubbed toes,

a dislocated finger, and a bruised knee. Harvey alleged in his complaint that the

officers injured his head, neck, and shoulder when they grabbed his arms to

handcuff him; the medical records, however, do not show any trauma, bruises, or

treatment to the head, neck, or shoulder, and Harvey has not specified what injuries

occurred to those areas. Harvey was not charged with trespassing, and the State

declined to prosecute Harvey for resisting arrest because the arrest affidavit was

insufficiently detailed for the State to prove that charge beyond a reasonable doubt.

The officers dispute this version of events. They concede they were in an unmarked car, 4

but assert that the car was known in the community to be a police vehicle. They further contend that

they were wearing police clothing, and identified themselves as police as soon as they exited the car,

at which point Harvey fled. Jaques also stated in his affidavit that he did not tackle Harvey, but

rather Harvey tripped while running and injured himself then. As stated above, we must, however,

view the facts in the light most favorable to Harvey in reviewing a summary judgment ruling.

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The district court granted summary judgment on Harvey’s unlawful arrest

claim based on the Magistrate Judge’s Report and Recommendation finding that

the officers were entitled to qualified immunity because they had arguable

probable cause to arrest Harvey for either resisting arrest without violence or

trespassing. The court also granted summary judgment on the excessive force

claim holding that the police were justified in using some force to arrest Harvey,

the force was limited in scope, and the injuries were minimal.

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DISCUSSION

“Qualified immunity offers complete protection for government officials

sued in their individual capacities if their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quotation

omitted). This court applies a two-step test to determine if qualified immunity

should apply. First, the court considers “whether the plaintiff’s allegations, if true,

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establish a constitutional violation.” Vinyard, 311 F.3d at 1346 (alteration and

quotation omitted). Second, if there was a constitutional violation, the court must

Having disposed of all federal claims, the court then declined to exercise supplemental 5

jurisdiction over the state law claims. Harvey has not appealed the dismissal of those claims.

Typically, the government defendant must also prove that he was acting within his 6

discretionary authority. Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003). Neither party,

however, disputes that Jaques and Zenelovic were acting within their discretionary authority. 

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address “whether the right was clearly established.” Id. (quotation omitted).

1. False Arrest

“A warrantless arrest without probable cause violates the Constitution and

provides a basis for a section 1983 claim.” Kingsland v. City of Miami, 382 F.3d

1220, 1226 (11th Cir. 2004). More specifically, an arrest made without probable

cause runs afoul of the Fourth Amendment’s prohibition of unreasonable searches

and seizures. Skop v. City of Atlanta, 485 F.3d 1130, 1143 (11th Cir. 2007).

Probable cause “to arrest exists where the facts and circumstances within the

collective knowledge of the law enforcement officials, of which they had

reasonably trustworthy information, are sufficient to cause a person of reasonable

caution to believe that an offense has been or is being committed.” Madiwale v.

Savaiko, 117 F.3d 1321, 1324 (11th Cir. 1997) (quotation omitted). An arrest

supported by probable cause is an absolute bar to a § 1983 false arrest claim.

Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir. 1996).

Whether the defendants had probable cause depends on the elements of the

alleged crime. Crosby v. Monroe County, 394 F.3d 1328, 1333 (11th Cir. 2004).

Here, Harvey faced two possible charges—resisting arrest and trespassing. If

either charge was supported by probable cause, the defendants are entitled to

qualified immunity. Skop, 458 F.3d at 1138. We conclude that the defendants had

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probable cause to arrest Harvey for trespassing, and we, therefore, agree with the

district court that Harvey’s § 1983 claim for false arrest is barred.

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Under Florida law, the crime of trespassing on property other than a

structure or conveyance “occurs when: [a] person who, without being authorized,

licensed, or invited, willfully enters upon or remains in any property other than a

structure or conveyance . . . [a]s to which notice against entering or remaining is

given, either by actual communication to the offender or by posting . . . .” Fla.

Stat. § 810.09(1)(a)(1). Here, the defendants saw Harvey standing at a location

where they knew he did not live and where “No Trespassing” signs were posted.

These circumstances were sufficient to give them probable cause to believe that

Harvey was trespassing and could be arrested for that crime. Harvey’s contention

that he had permission to be there and was not, therefore, actually trespassing is not

relevant to whether the officers had probable cause at the time of the arrest. See

Illinois v. Wardlow, 528 U.S. 119, 126 (2000) (noting that “persons arrested and

detained on probable cause to believe they have committed a crime may turn out to

be innocent”). Nor is it relevant that the officers reported in their arrest sheets that

he was arrested for the separate crime of resisting arrest. See Bailey v. Board of

County Comm’rs of Alachua County, Fla., 956 F.2d 1112, 1119 n.4 (11th Cir.

Having found that probable cause existed as to trespassing we need not address whether 7

probable cause existed on resisting arrest.

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1992) (“The validity of an arrest does not turn on the offense announced by the

officer at the time of the arrest”).

2. Excessive Force

The Fourth Amendment provides the right to be free from excessive force in

the course of any seizure of the person. Beshers v. Harrison, 495 F.3d 1260, 1265

(11th Cir. 2007). However, “[n]ot every push or shove, even if it may later seem

unnecessary in the peace of a judge’s chambers, violates a [person’s] constitutional

rights.” Neal v. Fulton County Bd. of Educ., 229 F.3d 1069, 1076 (11th Cir. 2000)

(internal quotation omitted). “Fourth Amendment jurisprudence has long

recognized that the right to make an arrest or an investigatory stop necessarily

carries with it the right to use some degree of physical coercion or threat thereof to

effect it.” Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002) (quoting Graham

v. Connor, 490 U.S. 386, 396 (1989)). “In order to determine whether the amount

of force used by a police officer was proper, a court must ask whether a reasonable

officer would believe that this level of force is necessary in the situation at hand.”

Lee, 284 F.3d at 1197 (quotation omitted). This must be decided “on a

case-by-case basis from the perspective of a reasonable officer on the scene, rather

than with the 20/20 vision of hindsight.” Post v. City of Fort Lauderdale, 7 F.3d

1552, 1559 (11th Cir.1993) (internal quotation marks omitted). This court has

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identified several factors to use in determining whether an officer’s use of force

was objectively reasonable, including “(1) the need for the application of force, (2)

the relationship between the need and the amount of force used, (3) the extent of

the injury inflicted and, (4) whether the force was applied in good faith or

maliciously and sadistically.” Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir.

2008).

Here, viewing the evidence in the light most favorable to Harvey, the district

court properly granted summary judgment on his claim that Jaques and Zenelovic

used excessive force in arresting him. As discussed above, Jaques and Zenelovic

were lawfully arresting Harvey, and so had the right to use some level of force to

effectuate that arrest. Assuming, as we must, that Harvey did not trip and fall but

rather that the defendants actually exerted force to complete the arrest, the amount

of force used by these officers was reasonable. According to the evidence, Harvey

had fled police and was uncooperative as the defendants tried to handcuff him. In

order to handcuff him, Jaques and Zenelovich grabbed Harvey’s arm, forced it

behind his back, and cuffed him. Harvey also alleged that Zenelovich used a

“hammer lock” technique, but he does not describe what this entailed. Harvey’s

alleged injuries were stubbed toes, a dislocated finger, and a bruised knee—

injuries that are not so extensive as to indicate malicious use of unnecessary force.

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Under the circumstances, the amount of force was reasonable. “[T]he application

of de minimis force, without more, will not support a claim for excessive force in

violation of the Fourth Amendment.” Nolin v. Isbell, 207 F.3d 1253, 1257 (11th

Cir. 2000). The defendants’ use of de minimus force in this case was not

unreasonable, and we affirm the district court’s grant of summary judgment on

Harvey’s excessive force claim.

III.

For the foregoing reasons, we AFFIRM the district court’s dismissal of the

claims against the City and the Chief of Police and the conspiracy claims as well as

the district court’s order granting summary judgment to defendants Jaques and

Zenelovic on the remaining claims.

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