FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Aug. 21, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-10004

Non-Argument Calendar

________________________

D. C. Docket No. 05-22665-CV-PCH

THEODORE DUKES, 

LYNN SMITH, 

BRIAN SCRUGGS, 

Plaintiffs-Appellees, 

versus 

MIAMI-DADE COUNTY, 

et al., 

Defendants, 

OFFICER ERIC GOLDBERG, Individually, 

OFFICER KIMBERLY LLAMBES, Individually, 

OFFICER ENRIQUE GUERRA, , Individually, 

OFFICER REGINA DEAN, Individually, 

Defendants-Appellants. 
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________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(August 21, 2008)

Before BIRCH, DUBINA and PRYOR, Circuit Judges.

PER CURIAM:

Officers Eric Goldberg, Kimberly Llambes, Enrique Guerra, and Regina

Dean appeal the denial of their motion for summary judgment based on qualified

immunity. The district court concluded that genuine issues of material fact barred

summary judgment. We affirm.

Theodore Dukes, Lynn Smith, and Brian Scruggs filed a complaint against

officers Goldberg, Llambes, Guerra, and Dean that alleged injuries arising out of a

traffic stop followed by a chase and arrest. Dukes, Smith, and Scruggs alleged that

the officers used excessive force in violation of the Fourth and Fourteenth

Amendments of the U.S. Constitution and failed to intervene when other officers

used excessive force during the arrest. The officers moved to dismiss the

complaint based on qualified immunity, which the district court denied in part. 

The officers appealed. We affirmed in part and concluded that the complaint

alleged sufficient facts to create a issue of fact about Goldberg’s use of force and
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the ability of the officers to intervene. Dukes v. Miami-Dade County, slip no. 06-

11629 (11th Cir. May 10, 2007). 

This second appeal by the officers concerns counts II, III, and IV of the

fourth amended complaint. Again the district court denied the officers qualified

immunity. The district court concluded that there were genuine issues of material

fact about whether Goldberg was justified in using force against Dukes during the

first stop; whether Goldberg and Dean used de minimis force to arrest Dukes;

whether Guerra and Llambes used excessive force to arrest Dukes; whether Guerra

used de minimis force to arrest Scruggs; and whether Goldberg, Dean, Guerra, and

Llambes failed to intervene while other officers used excessive force against

Dukes.

We review de novo the denial of summary judgment based on qualified

immunity and construe all facts and make all reasonable inferences in the light

most favorable to the nonmoving party. Tinker v. Beasley, 429 F.3d 1324, 1326

(11th Cir. 2005). 

The evidence presented by Dukes, Smith, and Scruggs creates jury questions

about the need for Goldberg to use force, the amount of force used to arrest Dukes

and Scruggs, and the officers’ presence, participation in, and failure to intervene in

several assaults of Dukes after he was handcuffed. The district court
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acknowledged the officers’ arguments regarding the absence of physical injury to

substantiate Dukes’s and Scruggs’s allegations, but the district court correctly

concluded that medical evidence was not required to create a genuine issue of

material fact for trial. The district court correctly evaluated the motion for

summary judgment in the light of allegations contained in the fourth amended

complaint, which superceded the earlier complaints. See Lowery v. Ala. Power

Co., 483 F.3d 1184, 1219–20 (11th Cir. 2007). Any contradictions in the

allegations made by Dukes, Smith, and Scruggs may be used at trial to impeach

them or to attack their credibility. See Fed. R. Evid. 608(b); Jackson v.

McWilliams Dredging Co., 76 F.2d 795, 797 (5th Cir. 1935). 

The denial of summary judgment is AFFIRMED.