[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 19-14586

Non-Argument Calendar

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D.C. Docket No. 1:18-cv-20481-RNS

JAMIE RASHAD BROWN, 

 Plaintiff - Appellant,

 versus

TI’ANDRE BELLINGER, 

individually,

 Defendant - Appellee.

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Appeal from the United States District Court

for the Southern District of Florida

________________________

(January 21, 2021)

Before NEWSOM, LUCK, and ANDERSON, Circuit Judges.

PER CURIAM: 

Jamie Rashad Brown filed a two-count complaint alleging that during the 

course of a pat-down search, a police officer used excessive force in violation of 

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the Fourth Amendment and intentionally inflicted emotional distress on him. The 

district court granted the officer’s motion for summary judgment on both counts. 

On appeal, Brown asserts with respect to his excessive-force claim that fact issues 

preclude summary judgment, that the district court improperly made credibility 

determinations against him, and that, in any event, the officer is not entitled to 

qualified immunity. Brown also argues that the district court improperly weighed 

the evidence on his intentional-infliction-of-emotional-distress claim. For the 

reasons that follow, we affirm. 

I

This case arises from an incident involving Brown and Ti’Andre Bellinger, a 

city of Miami police officer. According to Brown, he was working late at night at 

a small bodega in Miami when he witnessed a dispute among three women, one of 

whom called the police. By the time Bellinger arrived, none of the three women 

remained at the scene, and Bellinger ordered Brown to “come here.” Bellinger 

asked Brown whether he had anything in his pockets, and Brown replied “no.” 

Bellinger proceeded to pat-down search Brown, pull out Brown’s wallet, and, 

shortly after, retrieve marijuana from Brown. According to Brown, after this initial 

search concluded, Bellinger crept up to him from behind, caressed his chest, and 

“hugged [him] like a female.” Bellinger “went inside of Brown’s boxer briefs”

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and made contact with Brown’s penis and testicles. The search of Brown’s boxer 

briefs lasted two minutes. Bellinger stopped when Brown objected. 

Brown’s amended complaint alleged a violation of his federal civil rights 

(Count 1) and intentional infliction of emotional distress (Count 2). Officer 

Bellinger moved for summary judgment on both counts, arguing (1) that he was 

entitled to qualified immunity on Brown’s civil-rights claim and (2) that Brown

had failed to meet his burden to establish a claim for intentional infliction of 

emotional distress. In response, Brown attached his own affidavit that had been 

created after his deposition. Bellinger’s reply argued that portions of Brown’s 

newly filed affidavit contradicted his deposition testimony. 

The district court granted Bellinger’s motion for summary judgment. 

Construing Count 1 as an excessive-force claim, the district court concluded that 

Bellinger’s use of force was de minimis, and that, even if the court were to decide 

that Bellinger’s search was unconstitutionally unreasonable, Brown had failed to 

show that Bellinger’s conduct violated clearly established law. With respect to 

Count 2, the district court held that Brown failed to produce evidence that 

Bellinger’s conduct exceeded “all possible bounds of decency and is atrocious, and 

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utterly intolerable in a civilized community,” and that Bellinger’s conduct caused 

severe emotional distress. Brown now appeals.1

III

Brown appeals the district court’s order with respect to both his excessiveforce claim (Count 1) and his intentional-infliction-of-emotional-distress claim 

(Count 2). We will address each in turn. 

A

Brown challenges the district court’s grant of summary judgment for 

Bellinger on his excessive-force claim on three separate grounds. First, he argues 

that genuine issues of material fact preclude summary judgment. Second, Brown 

contends that the district court impermissibly made credibility determinations by 

adopting Bellinger’s—not Brown’s—version of the facts. Third, Brown insists

that Bellinger is not entitled to qualified immunity because (1) the amount of force 

used by Bellinger was objectively unreasonable and (2) either that a broad, clearly 

established principle controls the facts here or that Bellinger’s conduct so 

obviously violates the Constitution that prior case law is unnecessary. 

1 We review a district court’s order granting summary judgment de novo, viewing all the 

evidence and drawing all reasonable inferences in favor of the non-moving party, Brown. 

Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005). Summary judgment is 

appropriate when the record demonstrates that 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).

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In response, Bellinger argues that, contrary to Brown’s contentions, no 

genuine issues of material fact exist, and the district court did not make improper 

credibility findings. Bellinger further argues that his use of force was de minimis 

and objectively reasonable, and that a constitutional violation did not occur. He 

contends that even if a constitutional violation did occur, Brown failed to meet his 

burden to prove that the constitutional right at issue was clearly established. 

A court “can only grant summary judgment if everything in the record 

demonstrates that no genuine issue of material fact exists.” Strickland v. Norfolk S. 

Ry. Co., 692 F.3d 1151, 1154 (11th Cir. 2012) (quotation marks omitted). “A fact 

is ‘material’ if it ‘might affect the outcome of the suit under the governing law.’” 

BBX Capital v. FDIC, 956 F.3d 1304, 1314 (11th Cir. 2020) (quoting Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Further, “[c]redibility 

determinations, the weighing of the evidence, and the drawing of legitimate 

inferences from the facts are jury functions, not those of a judge, whether he is 

ruling on a motion for summary judgment or for a directed verdict.” Anderson, 

477 U.S. at 255. 

Here, the possible issues of fact that Brown has identified are either 

immaterial, unsupported by the record, or undisputed. That Bellinger was 

responding to a call and not “just cruising around” is immaterial. That “Bellinger 

continued to stalk [Brown] even though he had nothing to do with the reason for 

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the call and was simply standing in front of a store where he was working” is 

unsupported by the record. Further, we accept as true in this summary judgment 

posture that Bellinger crept behind Brown, caressed Brown’s chest, hugged him 

“like a female,” stuck his gloved hand into Brown’s underwear, and then touched

Brown’s penis and testicles. The parties only dispute whether Bellinger

“manipulated”2 (rather than merely touched) Brown’s penis and testicles and

whether the contact with the penis and testicles lasted ninety seconds or two 

minutes. These distinctions are immaterial for the purpose of summary judgment. 

Nor did the district court make improper credibility findings. The district 

court noted the number of “contradictory and misleading claims found throughout

the record.” But “contradictory or misleading claims” simply refers to the fact that 

some allegations in the complaint contradict Brown’s deposition testimony. The

district court expressly indicated that it took the facts in the light most favorable to 

Brown; in doing so, the district court relied on Brown’s statement of material facts

and his own deposition.

With respect to qualified immunity, “an officer asserting a qualifiedimmunity defense bears the initial burden of showing that he was acting within his 

discretionary authority.” Piazza v. Jefferson Cnty., 923 F.3d 947, 951 (11th Cir. 

2019) (quotation marks omitted). Once an officer makes this showing—and here, 

2 At various points, Brown also described Bellinger’s conduct as “fondling” and “stroking.”

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it is unchallenged—the burden shifts to the plaintiff to show that “(1) the officer 

violated a constitutional right and (2) the right was clearly established at the time 

of the alleged violation.” Piazza, 923 F. 3d at 951; see also Cozzi v. City of 

Birmingham, 892 F.3d 1288, 1293 (11th Cir. 2018). “We may decide these issues 

in either order, but, to survive a qualified-immunity defense, [the plaintiff] must 

satisfy both showings.” Jones v. Fransen, 857 F.3d 843, 851 (11th Cir. 2017). 

Under the first step of the analysis, to determine whether an officer violated 

a constitutional right, we evaluate the reasonableness of the force used under an 

objective standard and ask whether an officer’s actions were reasonable “in light of 

the facts and circumstances confronting [the police officer], without regard to his 

underlying intent or motivation.” Kesinger v. Herrington, 381 F.3d 1243, 1248 

(11th Cir. 2004); see also Lee v. Ferraro, 284 F.3d 1188, 1197–98 (11th Cir.

2002). This Court has “established the principle that the 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). Thus, 

“a minimal amount of force . . . will not defeat an officer’s qualified immunity in 

an excessive force case.” Id. at 1258.

Here, the district court correctly determined that Bellinger did not violate 

Brown’s constitutional rights. First, it was not per se unreasonable for Bellinger to 

search Brown’s penis-and-testicles area. Both the Supreme Court and this Court

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have described pat-down searches as involving “arms and armpits, waistline and 

back, the groin and area about the testicles, and entire surface of the legs down to 

the feet.” Terry v. Ohio, 392 U.S. 1, 17 n.13 (1968) (citation omitted) (emphasis 

added); see also United States v. Blake, 888 F.2d 795, 801 (11th Cir. 1989).

Second, Bellinger did not use more than de minimis force. At most, Officer 

Bellinger “manipulated” or “touched” Brown’s penis and testicles for two minutes,

and although this certainly seems to us unnecessarily long, no lasting physical 

injury occurred. We have found far more aggressive and injurious uses of force to 

be de minimis and reasonable. See, e.g., Durruthy v. Pastor, 351 F.3d 1080, 1094

(11th Cir. 2003) (“Here, even if the force applied by [the officer] in effecting the 

arrest—forcing Durruthy down to the ground and placing him in handcuffs—was 

unnecessary, plainly it was not unlawful. The amount of force used was de 

minim[i]s.”); Nolin, 207 F.3d at 1254–58 (where a police officer saw two boys 

fighting, it was de minimis force to grab one of the boys, a seventeen-year-old, 

from behind by the shoulder and wrist, throw him against a van three or four feet 

away, knee him in the back, push his head against the side of the van, search his 

groin area in an uncomfortable manner, and handcuff him); Gold v. City of Miami, 

121 F.3d 1442, 1446 (11th Cir. 1997) (officer’s applying handcuffs tightly, 

resulting in skin abrasion, was a de minimis use of force); Jones v. City of Dothan, 

121 F.3d 1456, 1460 (11th Cir. 1997) (finding the force used to be minor where 

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officers slammed the plaintiff against a wall, kicked his legs apart, required him to 

put his arms above his head, and pulled his wallet from his pants pocket). Because 

Brown failed to satisfy the first step of the qualified-immunity analysis, as is his 

burden, Officer Bellinger is entitled to qualified immunity on Brown’s excessive 

force claim.3

 

B

On appeal, Brown also argues that the district court impermissibly weighed 

the evidence on his intentional-infliction-of-emotional-distress claim. Specifically, 

he contends that the district court ignored Brown’s testimony, failed to disclose 

important context regarding Bellinger’s psychiatrist visits, and improperly 

concluded that Brown had not suffered greatly. 

Under Florida law, to bring an intentional-infliction-of-emotional-distress 

claim, a plaintiff must show that—

(1) [t]he wrongdoer’s conduct was intentional or reckless, that is, he 

intended his behavior when he knew or should have known that 

emotional distress would likely result; 

(2) the conduct was outrageous, that is, as to go beyond all bounds of 

decency, and to be regarded as odious and utterly intolerable in a 

civilized community; 

(3) the conduct caused emotional distress; and 

3 Brown also argues that the sham-affidavit rule does not apply. We need not address the 

propriety of the sham-affidavit rule in order to determine that qualified immunity applies. Nor 

does Brown’s post-deposition affidavit create a genuine issue of material fact. 

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(4) the emotional distress was severe.

Deauville Hotel Mgmt., LLC v. Ward, 219 So. 3d 949, 954–55 (Fla. Dist. Ct. App. 

2017). 

For our purposes, it is sufficient that the district court properly concluded 

that Bellinger’s conduct did not cause severe emotional distress. “[S]evere 

emotional distress means emotional distress of such a substantial quality or 

enduring quality[] that no reasonable person in a civilized society should be 

expected to endure it.” Kim v. Jung Hyun Chang, 249 So. 3d 1300, 1305 (Fla. 

Dist. Ct. App. 2018) (quotation marks omitted). Brown urges us to consider his 

testimony that he saw a psychiatrist every six months “because of depression and 

anger control, and to get renewal of Celexa[.]” These relatively infrequent 

psychiatrist visits do not by themselves provide evidence of distress that is either 

substantial or enduring, particularly when it is unclear whether Brown’s depression 

and issues with anger control arose from the incident with Bellinger or from 

another source.

4

 See id. at 1306 (“[C]ourts that have tackled this issue have 

recognized that a high standard for determining what kind of emotional distress is

remediable in a claim for intentional infliction is necessary to prevent the tort from 

becoming a venue for litigation over every emotional injury.”). Accordingly, we 

4 During his deposition, Brown indicated that he was already taking Celexa, a depression 

medication, at the time of the incident with Bellinger. 

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conclude that the district court properly granted summary judgment for Bellinger 

on Brown’s intentional-infliction-of-emotional-distress claim. 

IV

For the foregoing reasons, we affirm the district court’s grant of summary 

judgment for Officer Bellinger on Brown’s excessive-force and intentionalinfliction-of-emotional-distress claims.

5

 

AFFIRMED.

5 Brown did not bring either a post-arrest strip-search claim or a substantive due process claim. 

See, e.g., Evans v. Stephens, 407 F.3d 1272, 1279 (11th Cir. 2005); Doe v. City of Miami 

Gardens, 389 F. Supp. 3d 1118, 1133 (S.D. Fla. 2019). We do not opine on the merits of either 

of those claims under these facts.

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