                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                            OCT 31, 2006
                             No. 06-13389                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                      Docket No. 04-03460-CV-P-S

ANTONIO SALDANA HERNANDEZ,
SANDY HERMAN-HERNANDEZ.

                                               Plaintiffs-Appellants,

                                  versus

CITY OF HOOVER, ALABAMA,
JACOB R. PUGH,

                                               Defendants-Appellees.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                     _________________________

                            (October 31, 2006)

Before ANDERSON, BIRCH and HILL, Circuit Judges.
PER CURIAM:

       Appellants Antonio Saldana Hernandez (Mr. Hernandez) and Sandy

Herman-Hernandez (Mrs. Hernandez) filed suit against appellees, The City of

Hoover, Alabama (City), and, Police Officer Jacob Pugh (Officer Pugh), in his

individual capacity, under 42 U.S.C. § 1983 for injuries that Mr. Hernandez

allegedly sustained as the result the use of excessive force by Officer Pugh against

him during Mr. Hernandez’s arrest. The district court held that Officer Pugh had

carried his burden on summary judgment of demonstrating that there were no

material facts in dispute and that Officer Pugh was entitled to the protection of

qualified immunity. Thereafter the district court entered judgment as a matter of

law in favor of Officer Pugh on Mr. Hernandez’s Section 1983 claim against him.

       In this case, Officer Pugh and other police officers were attempting to gain

control of multiple suspects after being called to a crime scene where a fight had

transpired.1 During his arrest, and after he was handcuffed, Officer Pugh kicked

Mr. Hernandez in the back of the calf, termed a “PPCT strike” or “strike to the

tibial nerve”, after Mr. Hernandez, who stumbled around and smelled of alcohol,

twice refused to comply with Officer Pugh’s commands to sit down, issued first in



       1
         Because an assault had occurred, the officers, with weapons drawn, used the technique
of ordering the suspects to face away from the officers as they exited the vehicle, known as a
“felony take down” approach.

                                               2
English and then in Spanish. Apparently Mr. Hernandez suffered a fractured ankle

and a torn ligament as a result of the kick and claims that, in so doing, Officer

Pugh used excessive force.

      Officer Pugh testified that the kick was appropriate in the circumstance,

given the facts that two officers had weapons drawn; one officer was standing very

near Mr. Hernandez; at least one suspect was on the ground; and at least one

suspect was unrestrained and still sitting in the vehicle. Officer Pugh testified that,

in assessing the uncontained situation at hand, that if Mr. Hernandez was not going

to comply with two English verbal commands and two Spanish verbal commands

to sit down, then he needed to be effectively forced to sit on the ground as quickly

as possible.

      We review the district court grant of summary judgment in favor of Officer

Pugh de novo. See Browning v. Peyton, 918 F.2d 1516, 1520 (11 th Cir. 1990). In

this case the district court issued its opinion in a well-reasoned and well-written

twenty-page order.

      We have examined the record, read the briefs and the arguments of counsel

contained therein and conclude, that based upon the thorough and correct analysis

of the district court set forth in its order, that Officer Pugh has carried his burden

on summary judgment of demonstrating that there are not material facts in dispute.



                                            3
In addition, it is clear that the tibia strike used by Officer Pugh on Mr. Hernandez

was purposeful and effective to force a non-compliant Mr. Hernandez, who

smelled of alcohol, and twice refused to comply, to sit on the ground in order that

the safety of other officers at the crime scene could be ensured.

      We also agree with the judgment of the district court that Mr. Hernandez has

failed to establish that Officer Pugh’s actions constituted a constitutional violation.

Therefore Officer Pugh is entitled to the protection of qualified immunity and the

judgment of the district court is affirmed.

      AFFIRMED.




                                              4
