                   Case: 11-16077          Date Filed: 11/21/2012   Page: 1 of 12

                                                                        [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-16077
                                        Non-Argument Calendar
                                      ________________________

                                D.C. Docket No. 2:09-cv-00204-WCO



JONATHAN B. COLLINS,

llllllllllllllllllllllllllllllllllllllll                             Plaintiff-Appellant,

                                                 versus

GEORGE ENSLEY,
Individually and in his former official capacity as Sheriff of Fannin County,
RUSTY WHITTENBARGER,
in his individual capacity,

llllllllllllllllllllllllllllllllllllllll                             Defendants-Appellees.

                                     ________________________

                           Appeal from the United States District Court
                              for the Northern District of Georgia
                                 ________________________

                                           (November 21, 2012)

Before MARCUS, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:
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      Jonathan Bruce Collins appeals, pro se, the district court’s grant of summary

judgment to Sheriff George Ensley and Deputy Rusty Whittenbarger on his 42 U.S.C.

§ 1983 complaint alleging excessive force and a custom or policy of constitutional

violations. On appeal, Collins argues that: (1) Deputy Whittenbarger is not entitled

to qualified immunity because probable cause did not exist to arrest him for being

drunk in public at a high school football game, or for obstructing a law enforcement

officer in the course of his duties by lying about drinking alcohol; and (2) Sheriff

Ensley failed to adequately research and vet Deputy Whittenbarger before allowing

him to arrest citizens, and he was also liable for failing to adequately train and

supervise Whittenbarger. After thorough review, we affirm.

      We review de novo the district court’s decision on a motion for summary

judgment based on qualified immunity, Terrell v. Smith, 668 F.3d 1244, 1249-50

(11th Cir. 2010), and view the facts in the light most favorable to the plaintiff, Grider

v. City of Auburn, Ala., 618 F.3d 1240, 1246 n.1 (11th Cir. 2010). We review the

denial of a Fed.R.Civ.P. 59 motion for abuse of discretion. Jacobs v. Tempur-Pedic

Int’l, Inc., 626 F.3d 1327, 1343 n.20 (11th Cir. 2010).

      Summary judgment is appropriate when “the movant shows that 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). “[G]enuine disputes of facts are those in which

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the evidence is such that a reasonable jury could return a verdict for the non-movant.”

Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303 (11th Cir. 2009) (quotation omitted).

“For factual issues to be considered genuine, they must have a real basis in the

record.” Id. (quotation omitted). “[M]ere conclusions and unsupported factual

allegations are legally insufficient to defeat a summary judgment motion.” Ellis v.

England, 432 F.3d 1321, 1326 (11th Cir. 2005). Similarly, “[s]peculation does not

create a genuine issue of fact; instead, it creates a false issue, the demolition of which

is a primary goal of summary judgment.” Cordoba v. Dillard’s, Inc., 419 F.3d 1169,

1181 (11th Cir. 2005) (quotation and emphasis omitted).

      Qualified immunity shields government officials sued in their individual

capacities from liability against a plaintiff’s claims under 42 U.S.C. § 1983 if the

officials’ conduct did not “violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Grider, 618 F.3d at 1254

(quotations omitted). “The initial inquiry in a qualified immunity case is whether the

public official proves that he was acting within the scope of his discretionary

authority when the allegedly wrongful acts occurred.” Id. at 1254 n.19 (quotation

omitted). A two-part framework is then used to evaluate a qualified immunity

defense. Id. at 1254. Under this framework, the court must ascertain: (1) “whether

the plaintiff’s allegations, if true, establish a constitutional violation,” and (2)

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“whether the right violated was ‘clearly established.’” Id. This analysis may be done

in the order most appropriate for the case. Id.

      We have said that, in the absence of probable cause, the use of any force is

unreasonable and violates the Fourth Amendment. See Reese v. Herbert, 527 F.3d

1253, 1272-73 (11th Cir. 2008). Probable cause to arrest exists when “the facts and

circumstances within the officer’s knowledge, of which he or she has reasonably

trustworthy information, would cause a prudent person to believe, under the

circumstances shown, that the suspect has committed, is committing, or is about to

commit an offense.” Coffin v. Brandau, 642 F.3d 999, 1006-07 (11th Cir. 2011).

“[P]robable cause . . . need not reach the same standard of conclusiveness and

probability as the facts necessary to support a conviction.” Lee v. Ferraro, 284 F.3d

1188, 1195 (11th Cir. 2002) (quotation and alteration omitted). When “an officer

makes an arrest, which is properly supported by probable cause to arrest for a certain

offense, neither his subjective reliance on an offense for which no probable cause

exists nor his verbal announcement of the wrong offense vitiates the arrest.” Id. at

1196 (quotation omitted). Moreover, in the absence of actual probable cause, the

existence of arguable probable will support the application of qualified immunity.

See Reese, 527 F.3d at 1272. “Arguable probable cause exists where reasonable

officers in the same circumstances and possessing the same knowledge as the [officer]

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could have believed that probable cause existed to arrest.” Lee, 284 F.3d at 1195

(quotation omitted).

      We analyze claims of excessive force used to effectuate an arrest “under the

Fourth Amendment’s objective reasonableness standard.” See Edwards v. Shanley,

666 F.3d 1289, 1295 (11th Cir. 2012) (quotation omitted). Under that standard, we

must evaluate “whether the officer’s conduct is objectively reasonable in light of the

facts confronting the officer,” and, in so doing, must judge the reasonableness of a

particular use of force “from the perspective of a reasonable officer on the scene,

rather than with the 20/20 vision of hindsight.”            Id. (quotations omitted).

Accordingly, the Supreme Court has indicated that, in assessing the reasonableness

of an officer’s use of force, courts should consider “(1) the severity of the crime at

issue; (2) whether the suspect poses an immediate threat to the safety of the officers

or others; and (3) whether the suspect is actively resisting arrest or attempting to

evade arrest by flight.” Id. (quotation omitted); see also Graham v. Connor, 490 U.S.

386, 396 (1989).

      As we have explained, “[w]hen an officer lawfully arrests an individual for the

commission of a crime, no matter how minor the offense, the officer is entitled under

controlling Supreme Court precedent to effectuate a full custodial arrest.” Lee, 284

F.3d at 1196. The right to make a full custodial arrest “necessarily carries with it the

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right to use some degree of physical coercion,” and thus typically involves some force

and injury. Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th Cir. 2002). In

Rodriguez, an officer arrested the defendant based on a six-year old warrant for a

drug offense in a case of mistaken identity. Id. at 1343-45. The officer grabbed the

defendant’s left arm, twisted it behind the defendant’s back, and “forced it up to just

below the shoulder-blade.” Id. at 1345. The defendant fell to the ground, screaming

in pain while the officer finished handcuffing him. Id. Subsequently, the defendant

required more than 25 surgeries and his arm was ultimately amputated below the

elbow. Id. at 1351. In concluding that the officer’s use of force was not excessive

in violation of the Fourth Amendment, we stated that the officer’s handcuffing

technique was “a relatively common and ordinarily accepted non-excessive way to

detain an arrestee.” Id. Similarly, we have indicated that a police officer has lawful

authority “to effect a custodial arrest and to use a reasonable amount of force to

subdue and secure” an individual who violated a county noise ordinance by honking

her car horn. See Lee, 284 F.3d at 1195, 1198.

      As an initial matter, the parties dispute whether Deputy Whittenbarger had the

power to effectuate an arrest under Georgia law. However, the undisputed evidence

in the record adequately establishes that Deputy Whittenbarger was certified under

Georgia law, and thus, the requirement that registered peace officers not have more

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than a 12-month gap between positions in law enforcement was inapplicable to him.

See Ga. Code Ann. § 35-8-10. Although Collins now argues that a domestic violence

conviction prohibited Whittenbarger from validly possessing powers to arrest, Collins

did not make that argument or present corroborating evidence to the district court

until his motion for reconsideration, and “[a] motion for reconsideration cannot be

used to . . . raise argument or present evidence that could have been raised prior to the

entry of judgment.” Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir.

2009). Nor do we typically consider an argument not presented to the district court.

See Ramirez v. Sec’y, U.S. Dep’t of Transp., 686 F.3d 1239, 1249 (11th Cir. 2012).

Thus, for the purposes of qualified immunity, we conclude that Whittenbarger was

“acting within the scope of his discretionary authority when the allegedly wrongful

acts occurred.” Grider, 618 F.3d at 1254 n.19 (quotations omitted).

      We also conclude that probable cause or arguable probable cause existed for

Deputy Whittenbarger to arrest Collins for obstructing a law enforcement officer.

Under Georgia law, it is a misdemeanor to “knowingly and willfully obstruct[] or

hinder[] any law enforcement officer in the lawful discharge of his official duties.”

Ga. Code Ann. § 16-10-24(a). The Georgia Court of Appeals has explained that

“forcible resistance is not required to prove that an officer was hindered or obstructed

in a misdemeanor obstruction case.” Wilcox v. State, 684 S.E.2d 108, 110 (Ga. Ct.

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App. 2009) (quotation omitted). Rather, “[a]rgument, flight, stubborn obstinance, and

lying are all examples of conduct that may satisfy the obstruction element.” Id.

(quotation omitted).

      Accepting Collins’s version of events as true, Whittenbarger asked him

whether he had been drinking, and, thinking that Whittenbarger was asking him

whether he specifically drank anything during the football game, Collins repeatedly

told Whittenbarger that he had not been drinking during the game.               Deputy

Whittenbarger then told Collins that he could smell alcohol on Collins’s breath. It

does not matter whether Collins, in fact, lied to Whittenbarger, or whether he

admitted in his deposition that he lied by saying that he had always been told to deny

drinking if asked by a police officer. Indeed, the inquiry for purposes of probable

cause does not ask whether Whittenbarger had enough evidence to sustain a

conviction, see Lee, 284 F.3d at 1195, but focuses on “the facts and circumstances

within the officer’s knowledge.” Coffin, 642 F.3d at 1006-07.

      In this case, the facts and circumstances would cause a prudent person to

believe that Collins’s negative responses to questions about drinking were intentional

lies, or, at least, constituted stubborn obstinance, thereby indicating that Collins had

committed the offense of obstructing or hindering a law enforcement officer. See

Wilcox, 684 S.E.2d at 110. In addition, Collins’s undisputed actions gave rise to

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arguable probable cause because a reasonable officer in the same circumstances and

possessing the same knowledge as Whittenbarger could have believed that probable

cause existed to arrest Collins. See Lee, 284 F.3d at 1195. A reasonable officer

would have viewed Collins’s negative response to questions about whether he had

been drinking as an intentional lie in light of the undisputed evidence that Collins

smelled strongly of alcohol when speaking with Whittenbarger.

      Contrary to Collins’s arguments, the fact that he was not ultimately convicted

of being drunk in public or of obstructing a law enforcement officer did not vitiate the

probable cause for his initial arrest because post-arrest incidents like this are

irrelevant to the circumstances giving rise to probable cause. Similarly, the officers’

post-arrest conduct in allegedly failing to read Collins his Miranda rights did not

implicate “the facts and circumstances within the officer’s knowledge.” See Coffin,

642 F.3d at 1006-07.

      In short, because probable cause or arguable probable cause existed to arrest

Collins, Deputy Whittenbarger had the right “to effectuate a full custodial arrest,”

Lee, 284 F.3d at 1196, which carried with it the attendant right to use physical

coercion involving some force and injury, Rodriguez, 280 F.3d at 1351. Applying

the factors articulated by the Supreme Court in Graham, it appears that Deputy

Whittenbarger was entitled to use only minimal force in effectuating a full arrest.

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First, Collins’s offense of lying to Whittenbarger or obstructing his investigation by

being stubbornly obstinate was a minor crime. See Graham, 490 U.S. at 396.

Second, viewed in the light most favorable to Collins, the record establishes that

Collins did not pose an immediate threat to the safety of Whittenbarger or other

officers because he was not being loud or obnoxious, making threats, or acting

combatively. See id. Third, Collins says that he did not resist arrest, and it is

undisputed that he did not flee or attempt to evade arrest.          See id.    Thus,

Whittenbarger was entitled to employ only that quantum of force reasonably

necessary “to subdue and secure” Collins. See Lee, 284 F.3d at 1198.

      Nevertheless, under our precedent, twisting an arrestee’s arm behind his back

and “forc[ing] it up to just below the shoulder-blade” is an “ordinarily accepted” and

“non-excessive way to detain an arrestee.” Rodriguez, 280 F.3d at 1345, 1351. This

is true even if the specific procedure employed results in substantial pain and loud

protestations. See id. at 1345. In addition, since Whittenbarger was handcuffing

Collins at a busy football stadium in the midst of a large crowd, and while Collins

was probably intoxicated, it was not objectively unreasonable for the handcuffs to

have been placed on Collins backwards. As we’ve repeatedly said, we must avoid

evaluating Whittenbarger’s conduct “with the 20/20 vision of hindsight.” Edwards,

666 F.3d at 1295 (quotation omitted). Furthermore, even under Collins’s version of

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events, Deputy Whittenbarger did not continue to apply force after Collins was

arrested, and he was immediately taken to the jail where his handcuffs were removed.1

       Viewing the evidence in the light most favorable to Collins and drawing all

reasonable inferences in his favor, Collins sustained an injury to the ligament in his

wrist and has permanent numbness in his thumb as a result of the recent handcuffing.

Nevertheless, as we’ve explained, minimal force does not become excessive because

severe or tragic results occurred, and we do not “use hindsight to judge the acts of

police officers.” Rodriguez, 280 F.3d at 1352-53. Thus, based on our case law, we

conclude that Deputy Whittenbarger’s use of force was not excessive, and Collins’s

constitutional rights were not violated. See Krutzig v. Pulte Home Corp., 602 F.3d

1231, 1234 (11th Cir. 2010) (holding that we may affirm the district court’s grant of

summary judgment for any reason supported by the record).

       To the extent that Collins challenges the denial of his Fed.R.Civ.P. 59 motion

for reconsideration, Collins sought to impermissibly relitigate the merits of the



       1
          Although Collins relies on the statements of Officer Mike Presswood in his brief on appeal,
he does not argue that the district court erred in finding that those statements -- that the arrest was
violent, that he would not have used handcuffs in that situation, and that it took him ten minutes to
remove the handcuffs because they were put on backwards -- were inadmissible hearsay or by failing
to rely on them in resolving the defendants’ motion for summary judgment. Accordingly, he has
abandoned any argument that the statements were not inadmissible hearsay, and, regardless, the
statements do not alter the disposition of Collins’s excessive force claim in light of the preceding
analysis. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (explaining that, although we
read pro se briefs liberally, issues not briefed on appeal by a pro se litigant are abandoned).

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summary judgment motion, and to introduce new evidence and raise arguments that

could been presented prior to the entry of summary judgment, and the district court

did not abuse its discretion by denying it. See Wilchombe, 555 F.3d at 957. Finally,

because Deputy Whittenbarger did not violate Collins’s constitutional rights, we need

not consider Collins’s individual and official capacity claims against Sheriff Ensley

concerning a custom or policy of constitutional violations. See Penley v. Eslinger,

605 F.3d 843, 855 (11th Cir. 2010); Gish v. Thomas, 516 F.3d 952, 955 (11th Cir.

2008). Accordingly, we affirm the district court’s grant of summary judgment.

      AFFIRMED.




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