[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-14178

Non-Argument Calendar

____________________

AARON TARRIE ASHLEY, SR., 

Plaintiff-Appellant,

versus

KELLY BENNETT, 

Defendant-Appellee,

ACE UNIT, et al.,

Defendants.

____________________

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Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 3:20-cv-00144-TCB

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Before NEWSOM, GRANT, and ANDERSON, Circuit Judges.

PER CURIAM:

Aaron Ashley, Sr., a pro se state prisoner, appeals the district 

court’s order granting Officer Kelly Bennett’s motion for summary 

judgment in Ashley’s 42 U.S.C. § 1983 civil rights action. On appeal, Ashley argues that Officer Bennett used excessive force during his arrest when picking him up and placing him in a patrol vehicle, and that Officer Bennett was not entitled to qualified immunity. Notably, at the district court level, Ashley did not object to the 

magistrate judge’s report and recommendation (“R&R”), which 

had recommended that the district court grant Officer Bennett’s 

motion for summary judgment because there was no genuine issue 

of material fact for trial. Having received no objections, the district 

court adopted the magistrate judge’s R&R after a careful review.

Once a magistrate judge issues an R&R, the parties may 

serve and file written objections to the proposed findings and recommendations within 14 days after being served with a copy of the 

R&R. 28 U.S.C. § 636(b)(1). A party failing to object to a magistrate 

judge’s findings or recommendations contained in a R&R in accordance with § 636(b)(1) waives the right to challenge on appeal 

the district court's order based on unobjected-to factual and legal 

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21-14178 Opinion of the Court 3

conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. 11th Cir. 

R. 3-1. In the absence of a proper objection, however, we may review on appeal for plain error if necessary in the interests of justice. 

Id.

Because Ashley failed to object to the magistrate judge’s 

R&R, he has waived his right to challenge any unobjected-to factual or legal basis underlying the district court’s grant of the motion 

for summary judgment. Although we retain the discretion to review the merits of Ashley’s appeal in the interest of justice, Ashley 

makes no arguments on appeal that the interests of justice compel 

this Court to exercise its discretion to review the merits of the district court’s order. 

Even if Ashley had not waived his right to challenge the district court’s grant of summary judgment, we would affirm. Viewing the facts in the light most favorable to Ashley, the district court 

did not err in granting Officer Bennett’s motion for summary judgment because he did not exercise excessive force over Ashley, and, 

even if he had, qualified immunity shields him from liability. 

This Court reviews de novo the district court’s grant of a 

motion for summary judgment. Burton v. Tampa Hous. Auth., 

271 F.3d 1274, 1276-77 (11th Cir. 2001). It considers all reasonable 

factual inferences in the light most favorable to the non-moving 

party. Id. at 1277. Summary judgment is appropriate when there 

is no genuine issue of material fact, and the moving party is entitled 

to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine 

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factual dispute exists only where a reasonable factfinder could find 

by a preponderance of the evidence that the non-moving party is 

entitled to a verdict. Kernel Records Oy v. Mosley, 694 F.3d 1294, 

1300 (11th Cir. 2012). When a movant shows that there is no genuine dispute of material fact, the burden shifts to the non-moving 

party to show that there are facts that raise a genuine issue for a 

jury to decide. Id. Although all reasonable inferences must be 

drawn in favor of the non-moving party when evaluating a motion 

for summary judgment, “inferences based upon speculation are not 

reasonable.” Id. at 1301 (quotation marks omitted). “Evidence that 

is merely colorable, or is not significantly probative of a disputed 

fact cannot satisfy a party’s burden.” Id. (quotation marks omitted). Additionally, this Court “give[s] great deference to a district 

court’s interpretation of its local rules and review a district court’s 

application of local rules for an abuse of discretion.” Mann v. Taser 

Int’l, Inc., 588 F.3d 1291, 1302 (11th Cir. 2009) (quotation marks 

omitted). Northern District of Georgia Local Rule 56 states that 

the district court considers each of the movant’s facts as admitted 

unless the respondent “directly refutes the movant’s fact with concise responses supported by specific citations to evidence.” 

N.D. Ga. L.R. 56.1(B)(2)(a)(2)(i).

The Fourth Amendment guarantees the right of persons to 

be free from unreasonable seizures, which encompasses the right 

to be free from the use of excessive force during an arrest. U.S. 

Const. amend. IV; Graham v. Connor, 490 U.S. 386, 394-95 (1989). 

Whether the degree of force used was “reasonable” is determined 

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through an objective inquiry judged from the perspective of the 

officers at the scene, given the circumstances that they faced, 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.” Graham, 490 U.S. at 396-97. Allowances must be 

made for officers’ split-second judgments about the amount of 

force necessary when the circumstances are “tense, uncertain, and 

rapidly evolving.” Id. Accordingly, while “[r]econsideration will 

nearly always reveal that something different could have been 

done if the officer knew the future before it occurred,” this Court 

will not second-guess the officers on that basis. Carr v. Tatangelo, 

338 F.3d 1259, 1270 (11th Cir. 2003) (quotation marks omitted). 

Determining whether the force used was “reasonable” in a particular seizure “requires a careful balancing of the nature and quality 

of the intrusion on the individual’s Fourth Amendment interests 

against the countervailing governmental interests at stake.” Graham, 490 U.S. at 396 (quotation marks omitted).

Any arrest requires some level of force, and an officer may 

use “a reasonable amount of force to subdue and secure” an individual. Lee v. Ferraro, 284 F.3d 1188, 1198 (11th Cir. 2002); Brown 

v. City of Huntsville, Ala., 608 F.3d 724, 739-40 (11th Cir. 2010). 

“[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, 1258 n.4 (11th Cir. 

2000) (concluding that only de minimis force was used when, in the 

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process of a lawful arrest, an officer grabbed a suspect, threw him 

against a car several feet away, kneed him in the back, and caused 

minor bruises); see also Croom v. Balkwill, 645 F.3d 1240, 1252-53 

(11th Cir. 2011) (ruling that an officer used de minimis force by 

holding a suspect on the ground for ten minutes with a foot on her 

back until the area was secured); Durruthy v. Pastor, 351 F.3d 1080, 

1094 (11th Cir. 2003) (holding that an officer used de minimis force 

in forcing a suspect to the ground to handcuff him, and that, even 

if this force was unnecessary, it was not unlawful). “[S]ome use of 

force by a police officer when making a custodial arrest is necessary 

and altogether lawful, regardless of the severity of the alleged offense.” Durruthy, 351 F.3d at 1094. The extent of an individual’s 

injuries is also relevant to determining whether the force that was 

used was excessive. Stephens v. DeGiovanni, 852 F.3d 1298, 1325 

(11th Cir. 2017).

Qualified immunity protects a government actor acting 

within his discretionary authority from civil damages unless he violated a statutory or constitutional right that was clearly established at the time the alleged violation occurred. Gilmore v. 

Hodges, 738 F.3d 266, 272 (11th Cir. 2013). After the defendantactor has proved that he was acting within his discretionary authority, the plaintiff must show that (1) the actor violated a constitutional right and (2) the right was clearly established at the time of 

the incident. Id. This Court may decide these issues out of order. 

Id. at 273. The law may be clearly established if (1) there is a case 

with materially similar facts decided by the Supreme Court, the 

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Court of Appeals, or the highest court of the relevant state; (2) “a 

broader, clearly established principle should control the novel facts 

in this situation”; or (3) the officer’s conduct was so egregious so as 

to obviously violate the Constitution, even without caselaw on 

point. Sebastian v. Ortiz, 918 F.3d 1301, 1310 (11th Cir. 2019) (citation omitted).

 First, the district court did not err in determining that there 

was no genuine issue of material fact between the parties. While 

Ashley detailed a somewhat different factual narrative than did Officer Bennett in Ashley’s unsworn statement of facts, his allegations 

of force, which include being “roughly seized on either of [his] elbows,” “yanked up into the air from a seated position on the 

ground,” and “dragged approximately 60 to 70 feet to the patrol 

vehicle” are not necessarily inconsistent with Officer Bennett’s lessspecific rendition of the facts. In particular, Officer Bennett’s Statement of Undisputed Material Facts detailed that he assisted another 

officer with picking Ashley up from a seated position on the ground 

and placed him in the patrol car for transport, but it did not clarify 

how strongly he touched Ashley, how aggressively he raised him 

up, and how far or in what manner he moved Ashley to the patrol 

vehicle. Therefore, the competing narratives, on their face, are not 

necessarily inconsistent with each other, such that they would create a genuine issue of material fact that would preclude summary 

judgment. See Kernel Records Oy, 694 F.3d at 1300.

The district court was correct to disregard Ashley’s version 

of events because he failed to present actual evidence to support 

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his alleged version of events. Under Northern District of Georgia 

Local Rule 56, the district court properly considered Officer Bennett’s facts as admitted because Ashley failed to support his responses with citations to evidence. N.D. Ga. L.R. 

56.1(B)(2)(a)(2)(i). Giving great deference to the district court’s interpretation of its local rule, the district court did not abuse its discretion in applying Rule 56 and considering Officer Bennett’s Statement of Undisputed Material Facts as admitted. Id.; Mann, 588 

F.3d at 1302. As such, the undisputed facts established that Officer 

Bennett’s only interaction was to lift Ashley from a seated position 

and place him in a patrol car, without using unnecessary force to 

do so. 

Turning to Ashley’s excessive-force claim and applying the 

Graham factors, Ashley’s crimes, which included malice murder, 

felony murder, aggravated assault, armed robbery, concealing the 

death of another, tampering with evidence, and theft, were severe 

enough to warrant any minimal force required by Officer Bennett 

to place Ashley in the patrol vehicle after his arrest. Graham, 490 

U.S. at 396-97. While Ashley no longer posed an immediate threat 

to the safety of the officers or others, and while he was not actively 

resisting or trying to evade arrest when Officer Bennett physically 

contacted him, the undisputed facts established that Officer Bennett’s contact was limited to assisting another officer in placing 

Ashley in the patrol vehicle. Graham, 490 U.S. at 396-97. As stated 

in Ferraro, any arrest, which involves subsequently placing the 

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suspect into the patrol vehicle, requires some level of physical contact and force to secure the individual. See Ferraro, 284 F.3d at 

1198.

Officer Bennett’s use of force to place Ashley in the vehicle, 

even viewed in the light most favorable to Ashley, as set out in his 

unsworn statements in opposition to the summary-judgment motion, as “roughly seizing” his elbow, yanking him into the air, and 

dragging him to the patrol vehicle, was only de minimis force. Nolin, 207 F.3d at 1257. Such contact by Officer Bennett was even less 

egregious or aggressive than the force applied in a similar arrest 

situation in Nolin, where an officer forced the suspect against the 

car, kneed him in the back, and caused minor bruising, or in 

Croom, where the officer held the suspect on the ground for ten 

minutes with a foot on his back until the area was secured. Nolin, 

207 F.3d at 1257; Croom, 645 F.3d at 1252-53. This Court held that 

the more forceful physical contacts in Nolin and Croom were still 

lawful uses of de minimis force during an arrest. See Nolin, 207 

F.3d at 1257; Croom, 645 F.3d at 1252-53. Finally, while Ashley 

alleged that he suffered injuries to his shoulders and back, which 

are relevant when reviewing an excessive-force claim, he did not 

offer any medical records or documentation to support these allegations. Stephens, 852 F.3d at 1325. Because Officer Bennett only 

applied de minimis force and not excessive force to place Ashley 

into the patrol vehicle, his conduct did not violate Ashley’s Fourth 

Amendment rights. Durruthy, 351 F.3d at 1094.

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Next, the district court did not err in finding that Officer 

Bennett was shielded by qualified immunity. Ashley does not dispute that Officer Bennett was acting within his discretionary authority in performing his role during Ashley’s arrest and transport, 

so the remaining inquiry to determine if qualified immunity shields 

Officer Bennett is first whether Ashley showed that Officer Bennett 

violated a constitutional right, and second, whether this right was 

clearly established at the time of the incident. Gilmore, 738 F.3d at 

272. Even viewing the facts in the light most favorable to Ashley, 

the excessive-force analysis above demonstrates that Officer Bennett did not violate Ashley’s constitutional rights when picking him 

up and placing him in the patrol vehicle because any force that Officer Bennett used was de minimis. See Nolin, 207 F.3d at 1257; 

Croom, 645 F.3d at 1252-53. Turning to the second part of the 

qualified-immunity inquiry, Ashley failed to cite authority with 

materially similar facts, a broader and clearly established principle 

that should apply in his situation, or facts that showed that Officer 

Bennett’s conduct was so egregious as to violate the Constitution, 

even in the absence of binding caselaw. See Sebastian, 918 F.3d at 

1310. Because Officer Bennett acted within his discretionary authority as a law enforcement officer to help lift Ashley into the patrol vehicle, and because Ashley failed to show that Officer Bennett 

violated a constitutional right, the district court correctly found 

that qualified immunity shielded Officer Bennett from any liability. 

Sebastian, 918 F.3d at 1310.

Accordingly, we affirm.

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AFFIRMED. 

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