                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 11-12573         ELEVENTH CIRCUIT
                                        Non-Argument Calendar        APRIL 4, 2012
                                      ________________________        JOHN LEY
                                                                       CLERK
                                D.C. Docket No. 8:10-cv-00293-TBM



MICHAEL L. AINSWORTH,
CHERYL AINSWORTH,

llllllllllllllllllllllllllllllllllllllll                            Plaintiffs-Appellants,

                                               versus

KENNY NORRIS,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellee,

CITY OF TAMPA,

                                                                    Defendant.

                                     ________________________

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

                                           (April 4, 2012)

Before DUBINA, Chief Judge, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:

      Appellants Michael and Cheryl Ainsworth appeal pro se the district court’s

grant of summary judgment based on qualified immunity to Kenny Norris on their

civil rights and related state law claims. The Ainsworths alleged that Norris

unlawfully arrested Michael and, in so doing, used excessive force and committed

the torts of unlawful battery and false arrest. As a result of Michael’s injuries,

Cheryl allegedly suffered a loss of consortium.

      We review de novo the grant of a motion for summary judgment based on

qualified immunity, applying the same standards as the district court. Bashir v.

Rockdale Cnty., 445 F.3d 1323, 1326 (11th Cir. 2006). We resolve all issues of

material fact in the plaintiff’s favor and determine whether the defendant is

entitled to qualified immunity under that version of the facts. Id. at 1327. A party

is entitled to summary judgment under Rule 56 if “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). We do not consider issues raised for the first time in a reply

brief. Big Top Koolers, Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839, 844 (11th

Cir. 2008).

      A state official is entitled to qualified immunity from a suit for money

damages unless the plaintiff demonstrates that (1) the official violated a

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constitutional right (2) that was clearly established at the time the challenged

conduct occurred. Ashcroft v. al-Kidd, 563 U.S. ___, 131 S. Ct. 2074, 2080, 179

L. Ed. 2d 1149 (2011). The Supreme Court has said that courts may consider

these questions in any order. Id.

      A warrantless arrest without probable cause violates the Fourth Amendment

and is actionable under 42 U.S.C. § 1983. Rodriguez v. Farrell, 280 F.3d 1341,

1345 (11th Cir. 2002). However, if an officer mistakenly arrests one person who

is not the subject of a warrant instead of a second person who is the subject of a

warrant, the reasonable mistake standard applies to render that arrest valid. Id. at

1346–51 (concluding that, under the totality of the circumstances, an officer who

mistakenly arrests a person who has the same name, sex, age, and race and a

similar Social Security number, address, and place of birth as the subject of a

warrant is entitled to qualified immunity in that situation because the mistake was

reasonable).

      Further, although the use of excessive force also violates the Fourth

Amendment, the right to make a lawful arrest carries with it the right to use some

degree of physical force to effect the arrest. Id. at 1352. If the appropriate use of

force aggravates a pre-existing condition, it is not for that reason alone

transformed into excessive force. Id. at 1353. However, an officer’s use of force

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is excessive if his actions are not “objectively reasonable in light of the facts and

circumstances confronting him, without regard to his underlying intent or

motivation.” Zivojinovich v. Barner, 525 F.3d 1059, 1072 (11th Cir. 2008)

(internal quotation marks omitted). An officer is entitled to qualified immunity

from an excessive force claim unless every reasonable officer in his position

would have concluded that his use of force was unlawful. Jones v. City of Dothan,

121 F.3d 1456, 1460 (11th Cir. 1997).

      A cognizable excessive force claim “evokes the Fourth Amendment’s

protection against the use of an unreasonable quantum of force (i.e., non-de

minimis force unreasonably disproportionate to the need) in effecting an otherwise

lawful arrest.” Bashir, 445 F.3d at 1332. To analyze such a claim, courts consider

the totality of the circumstances and balance the nature and quality of the intrusion

on the plaintiff’s Fourth Amendment rights against the governmental interests at

stake. Jackson v. Sauls, 206 F.3d 1156, 1169–70 (11th Cir. 2000). The use of

force is judged from the perspective of a reasonable officer on the scene to

determine “whether a reasonable officer would believe that this level of force is

necessary in the situation at hand.” Zivojinovich, 525 F.3d at 1072. The factors a

court considers include whether the individual posed an immediate threat to the

officer or others and whether he was actively resisting arrest. Reese v. Herbert,

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527 F.3d 1253, 1272 (11th Cir. 2008).

      Under Florida law, a plaintiff states a cause of action for false imprisonment

if he shows (1) unlawful detention (2) against his will (3) without legal authority

(4) and “which is unreasonable and unwarranted under the circumstances.”

Montejo v. Martin Mem’l Med. Ctr., Inc., 935 So.2d 1266, 1268 (Fla. Ct. App.

2006). Probable cause is an absolute bar to an action for false arrest. Rankin v.

Evans, 133 F.3d 1425, 1435 (11th Cir. 1998). To state a cause of action for the

tort of battery under Florida law, a plaintiff must demonstrate that the defendant

acted with the intent to cause a harmful or offensive contact with him and such

contact occurred. City of Miami v. Sanders, 672 So.2d 46, 47 (Fla. Ct. App.

1996). Also, under Florida law, an alleged battery that was committed incident to

arrest does not give rise to an independent tort. Lester v. City of Tavares, 603

So.2d 18, 19–20 (Fla. Ct. App. 1992).

      Based upon the facts considered in the light most favorable to Michael and

Cheryl, we conclude from the record that Norris did not violate Michael’s

constitutional rights when he mistakenly arrested him. Although Michael argues

that his case is distinguishable from Rodriguez, the only differences he cites

involve his previous detentions based on the warrant. The record does not reflect

that Norris knew about any of these prior detentions. Also, under Rodriguez, the

                                          5
fact that Michael’s name, sex, race, and date of birth matched those listed on the

warrant demonstrates that Norris’s mistake in identifying him as the subject of the

warrant was reasonable. Nothing in the record indicates that, even with the

information from the teletype, Norris’s conclusion was unreasonable. Thus, we

conclude that the district court properly granted summary judgment to Norris on

Michael’s claim of false arrest in violation of the Fourth Amendment.

      As the magistrate judge noted, under Michael’s own version of the facts, he

did not comply with Norris’s multiple requests to exit his vehicle. At that point,

he was resisting arrest, an action which can constitute probable cause on its own.

Reese, 527 F.3d at 1272. Norris’s use of force to ensure Michael’s compliance

was not so excessive that every reasonable officer in his position would have

thought it unlawful. Jones, 121 F.3d at 1460. Michael’s injuries, aggravated by a

preexisting condition, do not transform Norris’s actions into the use of excessive

force. Rodriguez, 280 F.3d at 1353. Although law enforcement expert Sullivan

contended in his affidavit that Norris violated Michael’s constitutional rights, he

did not address Michael’s resistance to Norris and his repeated refusals to exit the

vehicle. Michael has not demonstrated that every reasonable officer in Norris’s

position would have concluded that his use of force was unlawful. Further,

although the district court concluded that no evidence showed that Norris

                                          6
intentionally inflicted Michael’s injuries, and Michael does not challenge the

district court’s finding to that effect on appeal, an officer’s underlying intent and

motivation are not controlling. Zivojinovich, 525 F.3d at 1072. In sum,

considering the totality of the circumstances, we conclude that the district court

properly found that Norris was entitled to qualified immunity on Michael’s

excessive force claim.

      Regarding Michael and Cheryl’s state law claims, Norris made a reasonable

mistake in arresting Michael even though he was not the subject of the warrant and

Norris had probable cause to arrest Michael because he resisted arrest. As a

consequence, he was entitled to summary judgment on Michael’s false arrest claim

under Florida law. Further, because Michael’s battery claim arose from this arrest,

it did not give rise to an independent tort. Nor can Cheryl pursue a derivative

claim for loss of consortium in the absence of any of Michael’s claims. Finally,

we decline to consider Michael and Cheryl’s discovery claims because they raised

those claims for the first time in their reply brief. Accordingly, for the above-

stated reasons, we affirm the district court’s grant of summary judgment based on

qualified immunity.

      AFFIRMED.




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