FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

May 6, 2008

THOMAS K. KAHN

CLERK

Honorable Pasco M. Bowman II, United States Circuit Judge for the Eighth Circuit, sitting *

by designation.

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-12605

________________________

D.C. Docket No. 03-23170-CV-AJ

MICHAEL E. HADLEY,

Plaintiff-Appellee,

versus

G. GUTIERREZ, Miami Beach Police Officer, Badge #710,

J. ORTIVERO, Miami Beach Police Officer, Badge #707,

Defendants-Appellants.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(May 6, 2008)

Before WILSON, COX and BOWMAN, Circuit Judges. *

COX, Circuit Judge:
 Hadley also sued the Defendants’ supervisor, Sgt. Smith. The district court dismissed 1

Smith from the lawsuit, a ruling Hadley does not challenge. 

Hadley moved for leave to file an amended complaint. (R.1-31.) The district court 2

granted the motion to permit Hadley to add a “John Doe” defendant. It then directed that Hadley’s

case would otherwise proceed according to the original complaint. (R.2-72 at 3.)

2

This excessive force case is before us on interlocutory appeal from the district

court’s order denying Defendants Ortivero’s and Gutierrez’s motion for summary

judgment seeking qualified immunity. We affirm in part and reverse in part. 

I. Background

Michael Hadley filed pro se a civil rights complaint under 42 U.S.C. § 1983

against Miami Beach police officers German Gutierrez and Jose Ortivero

(“Defendants”). Hadley filed his complaint after pleading guilty in Florida state court 1

to one count of resisting arrest with violence in violation of Fla. Stat. § 843.01.

The parties agree that while high on cocaine, Hadley entered a Publix

supermarket yelling, “Help me, help me, Jehovah God please help me!” and

Defendants, upon arriving at the store, found Hadley running around and knocking

items off of the shelves. (R.1-1 at 4.) Their agreement on the facts ends here. 

According to his complaint, the Defendants “drew their guns and ordered Mr. 2

Hadley to freeze. Mr. Hadley immediately complied and Defendants Gutierrez and

Ortivero then proceeded to restrain Mr. Hadley by placing him in handcuffs behind

his back . . . without incident.” (R.1-1 at 5.) While handcuffed and being led from the
“I remember the officers coming into the store. It was two of them. And they had their 3

weapon drawn out like, you know, in the stance of ‘freeze.’ That is what they said, ‘freeze,’ and I

froze. . . . [N]ow we are on our way to the police cruiser in the parking lot of Publix. I remember

looking up at the sky and I said, ‘Jehovah God, help me,’ [at which time] Ortivero said, ‘Shut up,

nigger,’ and punched me in my stomach.” (R.2-99 at 13: 21-24; 18: 3-16.) 

3

store, he again began asking for Jehovah’s protection. “Defendants Gutierrez and

Ortivero started punching Mr. Hadley in hisstomach and face until he was beaten into

a state of unconsciousness. While they were doing this the Defendants were yelling

‘Shut up nigger’ in response to Mr. Hadley[’]s plea for help from Jehovah God.”

(R.1-1 at 5.) Hadley testified to essentially the same story in his deposition, but the

only excessive force he complained about was a single punch to the stomach by

Officer Ortivero.

3

Hadley recounts a slightly different version of the facts in his Response to

Defendants’ Motion for Summary Judgment (“sworn response”). (R.2-92.) The most

important difference is his contention that he did resist arrest while inside the Publix.

See R.2-92 at 4 (“[I]t is clearly established that Plaintiff’s arrest, plea, and conviction

for the offense of resisting arrest with violence was grounded on the initial contact

between Plaintiff Hadley, and Defendants Gutierrez, and Ortivero, . . . which took

place within the Publix supermarket . . . .”); id. at 5 (“[b]ased on the first act of

resisting arrest with violence within the Publix supermarket by Plaintiff”).
The court agreed with the magistrate judge that Hadley’s complaint, although 4

claiming an Eighth Amendment violation, should be construed as asserting a Fourth Amendment

violation. (R.3-127 at 2.) But, unlike the magistrate judge, the court refused to treat Hadley’s

conspiracy claim, which he asserted under § 1983, as a conspiracy under 42 U.S.C. § 1985. (Id. at

3.)

4

Not surprisingly, Defendants offer a different version of the events that

transpired that night. According to their account, Hadley did not cooperate when they

ordered him to freeze in the Publix. Instead, he began “to swing his arms in a violent

manner and began screaming ‘Jehovah take me, Jehovah take me.’ After [a] struggle

w[ith] Def[endant] he was finally taken into custody.” (R.2-84, Ex. 1 at 2.) Once

outside of the store and en route to the police car, they contend, Hadley “became irate

and began to start kicking at both officer[s] . . . at which point he was redirected to

the ground,” causing a visible laceration to his face. (Id.) Officer Gutierrez’s report

of the incident does not mention any blows to Hadley’s stomach orface, nor does Sgt.

Smith’s supervisor report. 

After pleading guilty in Florida state court to one count of resisting arrest with

violence, Hadley filed this § 1983 civil rights complaint. In pertinent part, Hadley

alleges that Defendants used excessive force and that they conspired to cover up their

use of excessive force. The district court adopted in part the magistrate judge’s report

and recommendation, and denied qualified immunity to the Defendants. Defendants 4

filed this interlocutory appeal, and we appointed counsel for Hadley. 
5

II. Standard of Review

Summary judgment is appropriate where “there is no genuine issue as to any

material fact and . . . the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(c). We review denial of summary judgment de novo, viewing the facts in

the light most favorable to the nonmovant. Dyer v. Lee, 488 F.3d 876, 878 (11th Cir.

2007). “In exercising our interlocutory review jurisdiction in qualified immunity

cases, we are not required to make our own determination of the facts for summary

judgment purposes; we have discretion to accept the district court’s findings, if they

are adequate.” Cottrell v. Caldwell, 85 F.3d 1480, 1486 (11th Cir. 1996). 

III. Jurisdiction and Issue On Appeal

We have interlocutory jurisdiction to review the denial of summary judgment

in qualified immunity cases where our review requires a determination of the clearly

established law that existed at the time of the allegedly unlawful acts. See Cottrell,

85 F.3d at 1484 (citing Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S. Ct. 2806, 2816

(1985)). We also have jurisdiction if the district court simply rules that “material

issues of fact” precluded summary judgment. See id. at 1484-85 (citing Behrens v.

Pelletier, 516 U.S. 299, 312-13, 116 S. Ct. 834, 842 (1996)). Finally, in the course

of deciding an interlocutory appeal, we have authority to decide those evidentiary
6

sufficiency issues that are part and parcel of the core qualified immunity issues. Id.

at 1486. 

In light of our limited jurisdiction, the issue on appeal is whether the district

court erred in denying Defendants’ motion for summary judgment seeking qualified

immunity. In order to decide that issue, however, wemust consider Defendants’ other

arguments to the extent they are intertwined with the qualified immunity analysis. 

IV. Discussion

Qualified immunity shields government officials from liability for civil

damages for torts committed while performing discretionary duties unless their

conduct violates a clearly established statutory or constitutional right. Harlow v.

Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). There is no dispute that

Defendants were engaged in a discretionary duty while arresting Hadley. So the

burden shifted to Hadley on summary judgment to show that Defendants are not

entitled to qualified immunity. Dahl v. Holley, 312 F.3d 1228, 1233 (11th Cir. 2002).

Qualified immunity involves a two-step inquiry. The first question is whether

“[t]aken in the light most favorable to the party asserting the injury, do the facts

alleged show [that Defendants’] conduct violated a constitutional [or statutory]

right?” Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001). If so, the
7

second question is whether the right, be it constitutional or statutory, was clearly

established. Id. 

A. Constitutional Violations 

In his complaint, Hadley alleges two possible constitutional violations. He first

alleges that “Defendants Gutierrez and Ortivero, in using excessive force against Mr.

Hadley[,] violated the Eighth and Fourteenth Amendments” to theConstitution. (R.1-

1 at 9.) He also alleges that the Defendants’ “conspiracy to cover up this incident

violates the Eighth and Fourteenth Amendments [to] the United States Constitution,

and 42 U.S.C. § 1983.” (Id. at 9-10.) We address each allegation in turn.

1. Excessive Force

In an excessive force case arising out of an arrest, whether a constitutional

violation occurred is governed by the Fourth Amendment’s “objective

reasonableness” standard. Brosseau v. Haugen, 543 U.S. 194, 197, 125 S. Ct. 596,

598 (2004) (citing Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694 (1985), and

Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865 (1989)). A genuine “excessive

force” claim relates to the manner in which an arrest was carried out, independent of

whether law enforcement had the power to arrest. Bashir v. Rockdale County, Ga.,

445 F.3d 1323, 1332 (11th Cir. 2006). Our cases identify several factors instructive

in determining whether an officer’s use of force was objectively reasonable, including
8

“(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.” Slicker v. Jackson,

215 F.3d 1225, 1233 (11th Cir. 2000).

The district court refused to consider Hadley’s sworn response to the

Defendants’ motion for summary judgment because it contradicted his prior

deposition testimony. In his deposition, Hadley testified that “Ortivero punched me

in the stomach and said, ‘Shut up, nigger,’ and, . . . that is all I remember.” (R.2-99

at 19:20-21.) In his sworn response, however, Hadley claimed that “Gutierrez and

Ortivero . . . made racial slurs (shut up nigger), and then commenced to beat Plaintiff

about the head and stomach and in fact beat Plaintiff into a state of unconsciousness,

causing severe permanent injury . . . .” (R.2-92 at 8.) Under our precedent, the district

court was free to disregard Hadley’s sworn response as contradictory to his prior

deposition testimony. See Van T. Junkins &Assocs.,Inc. v. U.S. Indus., Inc., 736 F.2d

656, 657 (11th Cir. 1984) (“When a party has given clear answers to unambiguous

questions which negate the existence of any genuine issue of material fact, that party
Through his counsel’s Supplemental Brief, Hadley argues that the district court

5

should have considered his sworn response in finding the facts for purposes of summary judgment.

(Pl.’s Supp. Br. at 10-11 n.6.) We reject the argument that Van T. Junkins does not control this issue,

and we find no error in the district court’s refusal to consider Hadley’s sworn response. 

9

cannot thereafter create such an issue with an affidavit that merely contradicts,

without explanation, previously given clear testimony.”).5

So, viewing the facts adduced in Hadley’s deposition in the light most

favorable to Hadley, the court found that “Officer Ortivero struck him [Hadley]in the

stomach even though he was not struggling or resisting, and Officer Gutierrez did

nothing to stop him.” (R.3-127 at 3.) It was on this basis that the court denied

qualified immunity to both officers.

We exercise our discretion to accept the district court’s findings of fact and

conclude that, under those facts, Officer Ortivero’s punch constituted excessive force

against Hadley. The court found that Officer Ortivero punched Hadley in the stomach

while he was handcuffed and not struggling or resisting. Our cases hold that

gratuitous use of force when a criminal suspect is not resisting arrest constitutes

excessive force. In Lee v. Ferraro, 284 F.3d 1188 (11th Cir. 2002), we held that a

police officer used excessive force by slamming the plaintiff’s head onto the hood of

her car when she was handcuffed, not posing a threat to the officer, and not posing

a flight risk. Id. at 1198; see also Slicker, 215 F.3d at 1233 (force was excessive
10

where officers kicked handcuffed and non-resisting defendant in the ribs and beat his

head on the ground).

Hadley neither resisted arrest nor posed a danger to Officer Ortivero sufficient

to warrant a blow to the stomach. Thus Officer Ortivero was not entitled to use any

force at that time. While Officer Ortivero might have subjectively believed Hadley

posed a risk of danger—Hadley was admittedly high on cocaine and paranoid—we

do not consider the subjective belief of Officer Ortivero in determining whether force

is excessive. Rather, excessive force is judged solely on an objective basis. See

Graham v. Connor, 490 U.S. 386, 399, 109 S. Ct. 1865, 1873 (1989); Nolin v. Isbell,

207 F.3d 1253, 1257 n.3 (11th Cir. 2000) (referring to subjective element of the

excessive force test as “invalidated”). Therefore, Officer Ortivero’s single punch

constituted excessive force. 

Officer Gutierrez’s inaction, however, is a different story. “[A]n officer who

is present at the scene and who fails to take reasonable steps to protect the victim of

another officer’s use of excessive force, can be held liable for his nonfeasance.”

Velazquez v. City of Hialeah, 484 F.3d 1340, 1341 (11th Cir. 2007) (quoting Skrtich

v. Thornton, 280 F.3d 1295, 1302 (11th Cir.2002)) (quotation marks omitted). But it

must also be true that the non-intervening officer was in a position to intervene yet

failed to do so. Priester v. City of Rivera Beach, Fla., 208 F.3d 919, 924 (11th Cir.
11

2000). The district court found that Officer Gutierrez “did nothing to stop [Ortivero]”

from punching Hadley. (R.3-127 at 3.) The court did not find that Gutierrez could

have prevented Ortivero from doing so. In fact, Hadley presented no evidence from

which a reasonable jury could find that Gutierrez could have anticipated and then

stopped Ortivero from punching Hadley once in the stomach. Therefore, the district

court erred in denying qualified immunity to Officer Gutierrez because he committed

no constitutional violation. 

Before leaving the topic of excessive force, we pause to address an argument

advanced by the Defendants before the district court and before us—that, in light of

his guilty plea to resisting arrest with violence, Hadley’s excessive force claim is

barred by Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994), and collateral

estoppel.

In Heck, the Supreme Court articulated the principle that “when a state prisoner

seeks damages in a § 1983 suit, the district court must consider whether a judgment

in favor of the plaintiff would necessarily imply the invalidity of his conviction or

sentence; if it would, the complaint must be dismissed unless the plaintiff can

demonstrate that the conviction or sentence has already been invalidated.” Id. at 487,

114 S. Ct. at 2372. The thrust of the Defendants’ argument is that Hadley’s guilty

plea “constitutes an admission to the lawfulness of the Officers’ actions during [the]
The information charging Hadley with resisting arrest with violence reads in full: 

6

MICHAEL EDWIN HADLEY, on or about February 03, 2002, in the County and

State aforesaid, did unlawfully, knowingly, willfully and feloniously resist, obstruct

or oppose OFFICER G. GUTIERREZ and/or OFFICER J. ORTIVERO, duly

qualified Law Enforcement Officers, in the lawful execution of a legal duty being

performed by said officers[], to wit: the detention and/or arrest of said defendant, by

the said defendant(s) offering or doing violence to the person of said officers[], in

violation of s. 843.01, Fla. Stat., contrary to the form of the Statute in such cases

made and provided, and against the peace and dignity of the State of Florida. 

(R.2-84, Ex. 5 at 2.)

12

arrest[,]” (Defs.’ Initial Br. at 17), so that success on the § 1983 claim would

necessarily invalidate Hadley’s guilty plea. 

The parties spend considerable time debating at what point during the

encounter Hadley resisted. Because of his guilty plea, we assume he resisted at some

point during the night. What we do not definitively know, however, is whether the

punch complained about occurred at a time when Hadley was resisting. The resisting

arrest count to which Hadley pleaded guilty is general in nature, and offers no insight

into the sequence of events surrounding Hadley’s arrest, including at what point

Hadley resisted. It is theoretically possible that Hadley was punched then resisted,

6

or even that he resisted first, but was punched after he stopped resisting. So the

question becomes, viewing the evidence in the light most favorable to Hadley,

whether a jury could conclude that at some point Officer Ortivero punched Hadley

in the stomach when he was not resisting? If so, there is a constitutional violation not

barred by Heck. The jury is free to disbelieve Hadley’s deposition testimony that he
13

never resisted outside of the Publix, yet also believe that he was nonetheless punched

at a time when he was not resisting. Under that version of facts, as Defendants admit

(Defs.’ Initial Br. at 15), there is no Heck bar.

For similar reasons, the excessive force claim is not barred by collateral

estoppel. Because Defendants rely on a state criminal judgment to bar a federal

action, we look to the state’s law governing collateral estoppel. Florida permits the

use of defensive collateral estoppel in the criminal-to-civil context. See Vazquez v.

Metro. Dade County, 968 F.2d 1101, 1106 (11th Cir. 1992); Zeidwig v. Ward, 548 So.

2d 209, 209 (Fla. 1989). But, collateral estoppel does not apply where one of the

issues forming the basis of the civil lawsuit was not necessarily resolved in the prior

criminal proceeding. Vazquez, 968 F.2d at 1108. Hadley’s guilty plea to a nonspecific charge of resisting arrest with violence did not necessarily resolve the issue

of whether Officer Ortivero punched Hadley while he was resisting. Therefore,

because the issue of excessive force was not resolved in the prior criminal

proceeding, Hadley is not collaterally estopped from litigating that issue now. 

2. Conspiracy

“[T]o sustain a conspiracy action under § 1983 . . . a plaintiff must show an

underlying actual denial of [his] constitutional rights.” GJR Invs., Inc. v. County of

Escambia, Fla., 132 F.3d 1359, 1370 (11th Cir. 1998) (citing Slavin v. Curry, 574
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we

7

adopted as binding precedent decisions of the former Fifth Circuit handed down prior to October 1,

1981.

14

F.2d 1256, 1262 (5th Cir. 1978), modified on other grounds on denial of reh’g, 583

F.2d 779 (5th Cir.1978) ). In addition, the plaintiff must prove that the defendants 7

reached an understanding to deny the plaintiff’s rights. See Bendiburg v. Dempsey,

909 F.2d 463, 469 (11th Cir. 1990).

Hadley alleges that the Defendants conspired to cover up their use of excessive

force by falsifying police reports in violation of his rights under the Eighth and

Fourteenth Amendments. In their motion for summary judgment, the Defendants

argue that Hadley cannot demonstrate a constitutional violation or an agreement

between them to cover up the use of excessive force. 

Hadley fails to explain what constitutional right the alleged cover-up infringed.

We can imagine some possibilities. Covering up the use of excessive force may

hinder a criminal defendant’s access to the courts to redress a constitutional violation,

a right protected by several constitutional provisions. See Chappell v. Rich, 340 F.3d

1279, 1282-83 (11th Cir. 2003) (right secured by Article IV’s Privileges and

Immunities Clause, First Amendment, Fifth Amendment, and Fourteenth

Amendment). Or, the cover-up may prevent exculpatory or impeaching evidence from

reaching the desk of the state prosecutor, a denial of the defendant’s due process
15

rights under the Fourteenth Amendment. See McMillian v. Johnson, 88 F.3d 1554,

1567-68 (11th Cir. 1996). Hadley does not contend that the alleged cover-up

prevented him from seeking redress for a constitutional violation, or that the cover-up

denied the state prosecutor access to exculpatory or impeaching evidence. 

Hadley has the burden to show an actual denial of his constitutional rights

underlying the cover-up conspiracy. It is not our job to divine a constitutional

violation to support Hadley’s conspiracy claim. We are left completely in the dark

about the constitutional basis for the claim. His complaint contains no explanation of

which rights protected by the Fourteenth Amendment were infringed. And, tellingly,

neither Hadley’s pro se brief (Pl.’s Initial Br. at 11-12) nor his appointed counsel’s

brief (Pl.’s Supp. Br. at 20-21) cites a single conspiracy case. Hadley has wholly

failed to establish a constitutional basis for asserting a conspiracy claim sufficient to

withstand summary judgment.

More importantly, for purposes of summary judgment, Hadley offered no

evidence from which we can discern an agreement between the Defendants to cover

up the use of excessive force. The district court found that Hadley’s testimony that

Officer Gutierrez told Officer Ortivero that he had “‘nailed him [Hadley] good’ . . .

taken together with all the other evidence . . . is enough to show an agreement by

Officers Ortivero and Gutierrez to cover up the excessive force allegedly used by
Apparently, Officer Ortivero did not file an incident report; the parties point to none 8

in their briefs, and none is attached to their motion for summary judgment. 

16

Officer Ortivero.” (R.3-127 at 3.) Because the district court’s findings of fact on this

issue are inadequate, we must look to the record to determine whether genuine issues

of material fact precluded summary judgment. See Cottrell, 85 F.3d at 1486.

Hadley testified that he heard Sgt. Smith tell the Defendants that they should

have their reports of the incident—with the “same time, date and everything”—on his

desk the following morning. (R.2-99 at 61.) Hadley testified that Smith made this

statement in response to one of the Defendants asking whether he could punch

Hadley again. (Id. at 60-62.) Hadley also testified that he heard Officer Gutierrez tell

Officer Ortivero that he “nailed him good.” Hadley maintains that these statements

show that the Defendants conspired to cover up Ortivero’s use of excessive force. 

That Smith wanted the Defendants’ reports on his desk the following morning

is not surprising; his job responsibilities include compiling a supervisor’s report of

crimes. (R.2-84, Ex. 1, Attach. 1, 2.) More to the point, there is neither direct nor

8

circumstantial evidence in the record that supports the finding of an agreement

between Officer Ortivero and Officer Gutierrez to cover up the incident.

In summary, we hold that a fact-finder could conclude that Officer Ortivero

violated Hadley’s Fourth Amendment right to be free from excessive force. We hold
17

that neither Officer Ortivero nor Officer Gutierrez otherwise violated any of Hadley’s

constitutional rights. We turn now to the second inquiry in the qualified immunity

analysis, whether the right to be free from excessive force was clearly established. 

B. Clearly Established Law

In determining whether a right is clearly established, “[t]he relevant, dispositive

inquiry . . . is whether it would be clear to a reasonable officer that his conduct was

unlawful in the situation he confronted.” Saucier, 533 U.S. at 202, 121 S. Ct. at 2156.

“For a right to be ‘clearly established,’ previous case law must have developed it in

a concrete factual context so as to make it obvious to a reasonable government actor

that his actions violate federal law.” GJR Invs., Inc., 132 F.3d at 1366.

We hold that a handcuffed, non-resisting defendant’s right to be free from

excessive force was clearly established in February 2002. In Lee, 284 F.3d 1188, we

concluded that slamming a non-resisting criminal suspect’s head onto hood of a car

constituted excessive force. Along those same lines, we proclaimed in Skrtich, 280

F.3d at 1303, that “[b]y 1998, our precedent clearly established that government

officials may not use gratuitous force against a prisoner who has been already

subdued . . . .” Applying “the excessive force standard would inevitably lead every

reasonable officer . . . to conclude that the force” used here—punching a nonresisting criminal suspect for no apparent reason other than malice—is not protected
18

by our constitution. Priester, 208 F.3d at 926-27 (quoting Post v. City of Fort

Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1998), amended by 14 F.3d 583 (11th Cir.

1994)) (quotation marks omitted). Therefore, Officer Ortivero is not entitled to

qualified immunity on Hadley’s excessive force claim. 

V. Conclusion

The district court did not err in denying Officer Ortivero qualified immunity

on the excessive force claim. The district court did err in refusing to grant Officer

Gutierrez qualified immunity on Hadley’s excessive force claim and in refusing to

grant qualified immunity to both Defendants on Hadley’s conspiracy claim. We

reverse the denial of Gutierrez’s motion for summary judgment. We affirm the denial

of Ortivero’s motion for summary judgment on the excessive force claim, and reverse

the denial of Ortivero’s motion for summary judgment on the conspiracy claim. 

AFFIRMED IN PART; REVERSED IN PART.