                                                              [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT

                          ________________________          FILED
                                                   U.S. COURT OF APPEALS
                                No. 10-12003         ELEVENTH CIRCUIT
                                                       AUGUST 30, 2010
                            Non-Argument Calendar
                          ________________________        JOHN LEY
                                                           CLERK

                  D. C. Docket No. 6:10-cv-00185-PCF-DAB

CHARLTON H. FORRESTER, JR.,

                                                                 Plaintiff-Appellant,

                                      versus

TIMOTHY STANLEY,
CITY OF ORLANDO,

                                                             Defendants-Appellees.

                          ________________________

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

                                (August 30, 2010)

Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

     Charlton H. Forrester, Jr., appeals the district court’s dismissal of his 42
U.S.C. § 1983 claim against Timothy Stanley, a police officer for the City of

Orlando, on qualified-immunity grounds.1 In his complaint, Forrester alleged that

Stanley violated his substantive due process rights under the Fourth and

Fourteenth Amendments when he commanded his police K-9 to “bite” or

“apprehend” one of Forrester’s fellow passengers during a traffic stop, which

resulted in the K-9’s attack of Forrester while he lay prone on the sidewalk in

compliance with officers’ orders.2 Forrester claims that his temporary detention

pursuant to Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), placed him in police

custody and thus gave rise to a “special relationship” triggering the Fourteenth

Amendment’s affirmative duty of care and protection. See DeShaney v.

Winnebago County Department of Social Services, 489 U.S. 189, 198, 109 S. Ct.

998, 1004 (1989) (recognizing “certain limited circumstances” in which “the

Constitution imposes upon the State affirmative duties of care and protection with

respect to particular individuals”). By failing to protect him from the K-9 attack,

Forrester argues, Stanley failed to safeguard his liberty interest in his personal

security during the Terry-stop. The district court dismissed Forrester’s claim,

       1
                Forrester’s complaint also alleged state law negligence claims against the City of
Orlando and Stanley, which were dismissed alongside his § 1983 claim. Forrester only appeals
the district court’s dismissal of his federal claim.
       2
                Forrester concedes that because Stanley did not intend to apprehend Forrester with
his K-9, he is unable to seek relief under the Fourth Amendment for an excessive use of force.

                                                 2
holding that Stanley was entitled to qualified immunity. We agree.

      “We review de novo a district court’s decision to grant or deny the defense

of qualified immunity on a motion to dismiss, accepting the factual allegations in

the complaint as true and drawing all reasonable inferences in the plaintiff’s

favor.” Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003). “The doctrine of

qualified immunity provides that ‘government officials performing discretionary

functions generally are shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Case v. Eslinger, 555 F.3d 1317,

1325 (11th Cir. 2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.

Ct. 2727, 2738 (1982)). “To invoke qualified immunity, the official first must

establish that he was acting within the scope of his discretionary authority” when

the alleged violation occurred. Id. at 1325. “If, interpreting the evidence in the

light most favorable to the plaintiff, the court concludes that the defendant was

engaged in a discretionary function, then the burden shifts to the plaintiff to show

that the defendant is not entitled to qualified immunity.” Holloman ex rel.

Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004) (emphasis in

original). “To overcome qualified immunity, the plaintiff must satisfy a two prong

test; he must show that: (1) the defendant violated a constitutional right, and (2)

                                          3
this right was clearly established at the time of the alleged violation.” Id.

      “In order to determine whether a right is clearly established, we look to the

precedent of the Supreme Court of the United States, this Court’s precedent, and

the pertinent state’s supreme court precedent, interpreting and applying the law in

similar circumstances.” Oliver v. Fiorino, 586 F.3d 898, 907 (11th Cir. 2009).

“The relevant inquiry to determine whether a right is clearly established is to ask

whether it would be ‘sufficiently clear that a reasonable officer would understand

that what he is doing violates that right.’” Id. (citing Wilson v. Layne, 526 U.S.

603, 615, 119 S. Ct. 1692, 1699 (1999)). The Supreme Court has held that “[t]he

judges of the district courts and the courts of appeals should be permitted to

exercise their sound discretion in deciding which of the two prongs of the

qualified immunity analysis should be addressed first in light of the circumstances

in the particular case at hand.” Pearson v. Callahan, 555 U.S __, 129 S. Ct. 808,

818 (2009).

      There is no dispute that as a police officer responding to a traffic stop

Stanley was acting in his discretionary capacity. Thus, Forrester bears the burden

of demonstrating that Stanley violated his clearly established constitutional rights.

Holloman, 370 F.3d at 1264. Forrester has failed to satisfy this burden.

      Forrester cites only three cases to support his argument that at the time of

                                           4
his temporary detention it was clearly established that Stanley had an affirmative

duty to protect him from physical harm during a Terry-stop and that Stanley

violated this affirmative duty by failing to protect him from a K-9 attack.3 See

DeShaney, 489 U.S. 189, 109 S. Ct. 998; H.A.L. ex rel. Lewis v. Foltz, 551 F.3d

1227 (11th Cir. 2008); Lynch v. United States, 189 F.2d 476 (5th Cir. 1951). None

of these cases clearly establishes that the Fourteenth Amendment’s duty of

protection applies to Terry-stops, let alone that Stanley’s actions violated such a

duty.

        DeShaney merely establishes that there are some special circumstances,

such as incarceration and institutionalization, that trigger an affirmative duty of

protection under the Fourteenth Amendment. Id. at 198–99, 109 S. Ct. at 1004–05

(discussing the affirmative duty of the State to provide adequate medical care to

incarcerated prisoners and to provide involuntarily committed mental patients with

such services as are necessary to ensure their reasonable safety). Forrester

attempts to seize on some broad language in DeShaney stating that “[t]he

affirmative duty to protect arises . . . from the limitation which [the State] has

imposed on [an individual’s] freedom to act on his own behalf,” arguing that a



        3
              Before the district court Forrester also cited Helling v. McKinney, 509 U.S. 25,
113 S. Ct. 2475 (1993). He does not rely on this case on appeal.

                                                5
Terry-stop so limits the freedom of those temporarily detained. Id. at 200, 489 S.

Ct. at 1005–06. Even if DeShaney left open this possibility, the Supreme Court

refrained from specifically identifying any other circumstances, aside from

incarceration and institutionalization, that trigger the Fourteenth Amendment. Our

circuit has also reiterated the narrowness of the DeShaney opinion, noting that “it

appears the only relationships that automatically give rise to a governmental duty

to protect individuals from harm by third parties under the substantive due process

clause are custodial relationships, such as those which arise from the incarceration

of prisoners or other forms of involuntary confinement through which the

government deprives individuals of their liberty and thus of their ability to take

care of themselves.” White v. Lemacks, 183 F.3d 1253, 1257 (11th Cir. 1999).

DeShaney by no means establishes that it would be clear to a reasonable officer in

Stanley’s position that he had an affirmative duty of care to Forrester or that his

conduct violated that duty in contravention of the Fourteenth Amendment.

Oliver, 586 F.3d at 907.

      Foltz and Lynch, the other two cases cited by Forrester, provide even less

support for his argument. In Foltz, our circuit denied qualified immunity to

employees of the Florida Department of Children and Families where minor

children alleged that they failed to prevent child-on-child sexual abuse of the

                                          6
children while involuntarily in the custody of Florida’s foster-care system. 551

F.3d at 1232. At the time of the Foltz decision, it was already clearly established

that a foster child can state a 42 U.S.C. § 1983 cause of action under the

Fourteenth Amendment if that child is injured after a state employee is deliberately

indifferent to a known and substantial risk to the child of serious harm. Id. at

1231. Foltz did not interpret or expound upon those circumstances in which an

affirmative duty of protection arises under DeShaney; it did not involve a Terry-

stop or even an arrest; and it certainly sheds no light on the question before us:

whether at the time of Forrester’s detention a reasonable officer would be on

notice that Stanley’s conduct violated the Fourteenth Amendment.

      Lynch is equally inapposite. In Lynch, the former Fifth Circuit held that

police officers violated arrestees’ due process right to a trial by jury by turning

them over to the Ku Klux Klan for beatings by non-officer third parties. 189 F.2d

at 478–79. Not only does Lynch, a pre-DeShaney case, fail to discuss what

circumstances give rise to an affirmative duty of protection under the Fourteenth

Amendment; it addressed the procedural due process right to a trial by jury, not the

substantive aspects of the due process clause.

      In sum, Forrester has failed to cite any caselaw clearly establishing either

that a Terry-stop triggers the Fourteenth Amendment’s affirmative duty of

                                           7
protection or that Stanley violated this duty under the facts contained in his

complaint. Accordingly, we agree with the district court that Stanley is entitled to

qualified immunity and Forrester’s § 1983 claim was due to be dismissed upon

Stanley’s motion.

      AFFIRMED.4




      4
             Appellant’s request for oral argument is denied.

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