[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 18

- 10094 Non

- Argument Calendar

________________________ D.C. Docket No. 5:16

- cv - 00413

- JSM

- PRL

JOHN COTTAM , Plaintiff

- Appellant , versus CITY OF WILDWOOD, et al., Defendant s , DOUGLAS PELTON , City of Wildwood Police Officer, Defendant

- Appellee

.

__________________________ Appeal from the United States District Court for the Middle District of Florida

_________________________ (September 10, 2018) Before JORDAN , NEWSOM, and JULIE CARNES , Circuit Judges.

Case: 18-10094 Date Filed: 09/10/2018 Page: 1 of 102 PER CURIAM: John Cottam brought this action against Officer Douglas Pelton, a sserting false arrest and malicious prosecution claims under 42 U.S.C. § 1983 and intentional and negligent infliction of emotional distress claims under Florida law after Cottam was stopped for speeding and arrested for “eluding,” in violation of Fla. Stat. § 316.1935 (2)

. The district court granted summary judgment in favor of Pelton, concluding (1) that Pelton was entitled to qualified immunity as to both of the § 1983 claims, (2) that Pelton’s conduct while arresting Cottam was not sufficiently outrageous as to constitute intentional infliction of emotional distress, and (3) that Pelton was immune from liability for the negligent infliction of emotional distress claim under Fla. Stat. § 768.28(9)(a). On appeal, Cottam argues that the district court erred in granting summary judgment because there were numerous disputed issues of material fact demonstrating that Pelton fabricated the eluding charge. After careful review, w e affirm. 1

1 We review a district court’s entry of summary judgment de novo

. Hallmark Developers, Inc. v. Fulton Cty

. , Ga. , 466 F.3d 1276, 1283 (11th Cir. 2006). Summary judgment is appropriate when the evidence presents no genuine dispute as to any material fact and compels judgment as a matter of law. Celotex Corp. v. Catrett , 477 U.S. 317, 322 (1986). A fact is material if it may affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 248 (1986). A material fact is genuinely in dispute if the record evidence is such that a reasonable jury could return a verdict for the non

- moving party. Id . Factual disputes that are unnecessary will not be counted. Id.

Case: 18-10094 Date Filed: 09/10/2018 Page: 2 of 103 I Qualified immunity protects government officials engaged in discretionary functions unless they violate clearly established federal statutory or constitutional rights of which a reasonable person would have known. Keating v. City of Miami , 598 F.3d 753, 7 62 (11th Cir. 2010). To receive qualified immunity, “ the public official must first prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred. ” Kingsland v. City of Miami , 382 F.3d 1220, 1232 (11th Cir. 2004). Here, Pelton was acting within the scope of his discretionary authority when he stopped and arrested Cottam. So the burden shifts to Cottam to show that qualified immunity should no t apply because Pelton (1) violated a constitutional right and (2) that right was clearly established at the time of the incident. Garczynski v. Bradshaw , 573 F.3d 1158, 1166 (11th Cir. 2009). We may consider these two prongs in any order. Pearson v. Callahan , 555 U.S. 223, 236 ( 2009). A An officer is e ntitled to qualified immunity against false

- arrest claims if , based on the totality of the circumstances, the officer had arguable probable cause to effectuate the arrest. Davis v. Williams , 451 F.3d 759, 762

– 63 (11th Cir. 2006). Arguable probable cause exists where an objectively reasonable officer in the same circumstances and possessing the same knowledge as the arresting officer could

Case: 18-10094 Date Filed: 09/10/2018 Page: 3 of 104 have believed that probable cause existed. Thornton v. City of Macon , 132 F.3d 1395, 1399 ( 11th Cir. 1998). Arguable probable cause is a lower standard than actual probable cause, and only requires that under all of the facts and circumstance s, an officer reasonably could―but not necessarily would― have believed that probable cause was present. Crosby v. Monroe Cty. , 394 F.3d 1328, 1332 (11th Cir. 2004). Importantly, an arrest is lawful so long as there is probable cause to support an arrest for any offense, even if probable cause does not exist for the offense announced at the time of the arrest. Lee v. Ferraro , 284 F.3d 1188, 1196 (11th Cir. 2002). Here, the district court properly granted summary judgment in favor of Pelton as to Cottam’s false

- a rrest claim because Pelton had arguable probable cause to arrest Cottam for at least three offenses: (1) attempting to elude arrest , in violation of Fla. Stat. § 316.1935(1), (2) trespassing on private property, in violation of Fla. Stat. § 810.09(1)(a)(1) , and (3) speeding, in violation of Fla. Stat. § 316.189(1)

. 1 Fla. Stat. § 316.1935(1) provides that “[i] t is unlawful for the operator of any vehicle, having knowledge that he or she has been ordered to stop such vehicle by a duly authorized law enforc ement officer, willfully to refuse or fail to stop the vehicle in compliance with such order or, having stopped in knowing compliance

Case: 18-10094 Date Filed: 09/10/2018 Page: 4 of 105 with such order, willfully to flee in an attempt to elude the officer.” To establish probable cause for an arrest under § 316.1935(1), the arresting officer must reasonably believe that the arrestee knew that he had been ordered to stop. See Manners v. Cannella , 891 F.3d 959, 970 (11th Cir. 2018). Based solely on Cottam’s version of events, Pelton witnessed Cottam speed do wn the highway while Pelton pursued him with his lights flashing, and then witnessed Cottam turn onto a side road, drive past a public parking lot, drive past “no trespassing” and “do not enter” signs, enter into a restricted railroad area, and maneuver hi s car around barricades and onto the train tracks, before stopping hi s vehicle between the tracks. O n these undisputed facts alone , an objectivel y reasonable officer could have believed that Cottam kne w that he had been ordered to stop, but was attempting to elude arrest. Accordingly, Pelton had arguable probable cause to arrest Cottam for attempting to elude arrest in violation of Fla. Stat. § 316.1935(1). 2 Fla. Stat. § 810.09(1)(a)(1) provides that it is u nlawful to willfully enter onto property with a notice against trespassing. In this case, t he arrest scene photos show, and Cottam admits , that he drove past a “NO TRE SPASSING” sign and entered onto private property . Moreover, Cottam does not raise any i ssues on appeal t o counter this determination. Therefore, Pelton also had arguable probable

Case: 18-10094 Date Filed: 09/10/2018 Page: 5 of 106 cause to arrest Cottam for trespassing on private property, in violation of § 810.09(1)(a)(1). 3 Finally, Fla. Stat. § 316.189(1) provides that it is unlawful for any person t o exceed a posted speed limit. Id. Here, Cottam did not di spute that he was traveling more than 20 miles

- per - hour over the posted spee d limit. Although § 316.189(1) is only a misdemeanor, under Florida law, Pelton was entitled to perform a full custodial arrest. See Durruthy v. Pastor , 351 F.3d 1080, 1093 (11th Cir. 2003). Accordingly , Pelton also had arguable probable caus e to arrest Cottam for speeding in violation of Fla. Stat. § 316.189(1)

.
* * * Because even based solely on Cottam’s version of events, Pelton had arguable probable cause to arrest Cottam under Fla. Stat. §§ 316.1935(1), 810.09(1)(a)(1), and 316.189(1) , Cottam’s assertions that Pelton fabricated other aspects of the eluding charge a re immaterial. See Anderson v. Liberty Lobby, Inc ., 477 U.S. 242, 248 (1986) (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrel evant or unnecessary will not be counted.”). Case: 18-10094 Date Filed: 09/10/2018 Page: 6 of 107 B T o establish a malicious

- prosecution claim under § 1983, a plaintiff must prove (1) the elements of common law malicious prosecution and (2) a violation of his Fourth Amendment right to be free from unreasonable seizures. Kingsland , 382 F.3d at 1234. Under the second prong, a § 1983 plaintiff must prove that he

“ was seized in relation to the prosecution, in violation of his constitutional rights. ” Id. at 1235. In the case of a warrantless arrest, this requires that the party was arraigned or indicted, not merely arrested. Id

. Here, Cottam was never arraigned or indicted, but was merely arrested. Accordingly, the district court properly granted summary judgment against Cottam’s malicious

- prosecution claim because Cottam was never seized in violation of his constitutional ri gh ts. See id. Moreover, and in any event, Cottam’s malicious

- prosecution claim is precluded because , as already explained, Pelton had arguable probable cause to arrest Cottam

. See Black v. Wigington , 811 F.3d 1259, 1267 (11th Cir. 2016) ( “[T]he presence of probable cause defeats a claim of malicious prosecution.” ). II Under Florida law, no government agent shall be personally liable for acts within the scope of his employment unless the government agent acted in bad faith or with a malicious pu rpose or in a manner exhibiting a wanton and willful

Case: 18-10094 Date Filed: 09/10/2018 Page: 7 of 108 disregard of human rights, safety, or property. Fla. Stat. § 768.28(9)(a). The existence of probable cause contradict s any suggestion of malicious intent or bad faith. Wood v. Kesler , 323 F.3d 872, 88 4 (11th Cir. 2003). A To establish an intentional

- infliction

- of

- emotional

- distress claim under Florida law, the plaintiff must show that the defendant’s conduct was intentional or reckless, was outrageous, and caused severe emotional distress. Horizons Rehabilitation, Inc. v. Healthcare & Ret

. Corp. , 810 So. 2d 958, 964 (Fla. Dist. Ct. App. 2002). The standard in Florida for outrageous conduct

— which is a question of law

— is extremely high. Metro

. Life Ins. Co. v. McCarson, 467 So. 2d 277, 278 (Fla. 1985 ). The plaintiff must show that the defendant’s actions were “so extreme in degree as to go beyond all possible bounds of decency.” Von Stein v. Brescher , 904 F.2d 572, 584 (11th Cir. 1990). An officer is never liable where he has done no more than to i nsist upon his legal rights in a permissible way, even though he is well aware that such insistence is certain to cause emotional distress. McCarson , 467 So. 2d at 2 79

. The district court properly granted summary judgme nt against Cottam’s intentional

- infliction

- of

- emotional

- distress claim because Pelton ’s conduct while arresting Cottam was not sufficiently outrageous. See Von Stein , 904 F.2d at 584; McCarson , 467 So. 2d at 279. Moreover, because Pelton had arguable probable

Case: 18-10094 Date Filed: 09/10/2018 Page: 8 of 109 cause to arrest Cottam, hi s conduct was not malicious or in bad faith; accordingly, he is entitled to immunity under Florida law

. See Fla. Stat. § 768.28(9)(a)

. B T o establish a negligent

- infliction

- of

- emotional

- distr ess claim under Florida law (1) the plaintiff must suffer a physical injury, (2) the plaintiff’s physical injury must be cau sed by the psychological trauma, (3) the plaintiff must be involved in some way in the event causing the negligent injury to another, and (4) the plaintiff must have a close personal relations hip to the directly injured person. Zell v. Meek , 665 So. 2d 1048, 1054 (Fla. 1995). Additionally , the plaintiff generally must demonstrate that the emotional stress suffered flowed from injuries sustained in an impact. Fernander v. Bonis , 947 So. 2d 58 4, 590 (Fla. Dist. Ct. App. 2007) (noting that there are exceptions to Florida’s impact rule, but applying the rule to dismiss a negligent

- infliction

- of

- emotional

- distress claim alleging a false arrest). Here, the district court’s grant of summary judgmen t against Cottam’s negligent

- infliction

- of

- emotional

- distress claim was proper. As an initial matter, Cottam has failed to show that his emotional stress was caused by injuries he sustained in an impact, or that he should otherwise be granted an exception from Florida’s impact rule. See id. Furthermore, b ecause Pelton had arguable probable

c ause to arrest Cottam, Pelton i s again entitled to immunity unde r Florida law. See Fla. Stat. § 768.28(9)(a)

.

Case: 18-10094 Date Filed: 09/10/2018 Page: 9 of 1010 III For the foregoing reasons, we conclude that Pelton is entitled to qualified immunity as to his § 1983 claims, and statutory immunity as to his state law claims. Accordingly, the district court’s grant of summary judgment is affirmed. AFFIRMED. Case: 18-10094 Date Filed: 09/10/2018 Page: 10 of 10