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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 15-14343
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 4:14-cv-00292-MW-CAS



JAMES BOYNTON,

                                                            Plaintiff-Appellant,

versus

CITY OF TALLAHASSEE,
LINDSEY CAMERON,
CURTIS NORTON,
WAYNE ELLISON,

                                                         Defendants-Appellees.

                       ________________________

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

                              (May 24, 2016)

Before ED CARNES, Chief Judge, WILLIAM PRYOR, and FAY, Circuit Judges.

PER CURIAM:
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      James E. Boynton suffered a diabetic seizure in a Tallahassee, Florida

grocery store. During the emergency medical response that followed, a police

officer tased him multiple times. Boynton filed this lawsuit against that officer,

two medics, and the City of Tallahassee, claiming that the incident violated his

statutory and constitutional rights. The district court dismissed some of his claims

and granted summary judgment to the defendants on others. This is Boynton’s

appeal.

                                          I.

                                         A.

      Boynton is a Type I diabetic. Although he has experienced diabetic seizures

in the past, he does not wear a medical alert bracelet or anything else that would

make others aware of his condition. In 2010 he collapsed in the checkout line of a

Winn Dixie Supermarket. He has no memory of what happened right after he

collapsed, but we know from witnesses that a store employee called 911. Wayne

Ellison and Lindsay Cameron, medics with Leon County Emergency Medical

Services, responded around 1:12 p.m. They put Boynton, who was largely

unresponsive, onto a stretcher and took him outside to their ambulance.

      Boynton regained consciousness in the ambulance. Cameron asked him if

he had used any illegal drugs, and he told her that he had not. He did not tell the

medics that he was a diabetic, but he did ask them for a candy bar or something


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sweet. According to Boynton, Ellison responded by telling him that he was “about

to be Baker Acted” — that is, taken into custody for an involuntary psychiatric

observation under Florida law. That frightened Boynton, and he tried to leave the

ambulance. When the medics tried to stop him, Boynton physically resisted them

and a struggle ensued.

       After a minute or two, the medics decided to exit the ambulance and call for

help from law enforcement. A police dispatcher contacted Curtis Norton, a police

officer for the City of Tallahassee, and told him to “proceed to the scene with

lights and siren because of a combative patient inside an ambulance.” When

Norton arrived around 1:24 p.m., Cameron told him she thought Boynton might be

“on illegal drugs.” Norton entered the ambulance and found Boynton lying on the

floor, wedged between the stretcher and the ambulance wall, clinging to the bottom

of the stretcher.1 Norton told him to get onto the stretcher for treatment. Boynton

   1
     In its order granting summary judgment to the defendants, the district court prefaced its
account of the facts as follows:

       Mr. Boynton was at a Winn-Dixie when he experienced a hypoglycemic episode that
       distorted his conduct and triggered an emergency medical response in which he was
       eventually tased. Unfortunately, Mr. Boynton does not remember much of it. The last
       thing he remembers before going into hypoglycemic shock is standing in line at the
       Winn-Dixie. He did not regain consciousness until he was in the back of the
       ambulance. And so, the details of what happened in between come from the
       Defendants. This section nonetheless pieces together what Mr. Boynton does
       remember and construes the evidence in the light most favorable to him.

Doc. 94 at 2-3 (citations omitted). The parties in their briefs to this Court rely primarily on
Norton’s recollection of what happened after he arrived. For the purposes of this appeal, we will
accept the agreed-upon facts from the parties’ briefs.

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responded with “slurred words that [Norton] couldn’t understand,” but he did not

move. Norton decided to take Boynton into “protective custody,” but he did not

tell Boynton that. He hoisted Boynton onto the stretcher, where he lay on his

stomach with his arms tucked under his body and his head facing the ambulance

door. Norton ordered him to flip onto his back and turn around so that the medics

could treat him, but Boynton once again did not move. Norton tried to move

Boynton himself, but he was unable to get a solid grip because Boynton repeatedly

“tens[ed] his arms and pull[ed] them close to his body.” At that point, Norton

decided to use his taser as a stun gun to “get control of [Boynton] so that he could

be medically treated.” He did not give any verbal warning before using his taser.

       When Norton tased him, Boynton “flopped” between the stretcher and the

ambulance floor. Cameron, who was standing just outside, observed Boynton

“screaming,” “yelling,” “jerking,” and “go[ing] limp.” According to Cameron,

Boynton also said, “Okay, man, okay, man,” and “Okay, I’ll get up,” after Norton

first tased him. When Boynton did not move onto the stretcher right away, Norton

tased him eight more times — for a total of nine taser shocks cumulatively lasting

49 seconds. 2

       Boynton eventually complied with Norton’s order to lie on his back on the

stretcher. Norton then holstered his taser and handcuffed Boynton to the stretcher.

       2
         The record does not disclose the total amount of time that elapsed from the first shock
through the ninth.
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The medics returned to the ambulance, and Cameron began driving to the hospital

while Ellison resumed his assessment of Boynton’s condition. He discovered that

Boynton’s blood sugar was low and administered intravenous dextrose around

1:30 p.m. Boynton was treated and released from the hospital; he was not charged

with any crime. He alleges that being tased nine times caused neurological

damage to his lumbar spine, resulting in pain and numbness in his right leg.

                                         B.

      Boynton filed this lawsuit against the City of Tallahassee, Ellison, Cameron,

and Norton. In his third amended complaint, which is the operative one for

purposes of this appeal, Boynton asserted four federal claims: (1) a deliberate

indifference claim against Ellison, Cameron, and Norton under 42 U.S.C. § 1983;

(2) an excessive force claim against Norton under § 1983; (3) a municipal liability

claim against the City under § 1983; and (4) a discrimination claim against the City

under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132, and the

Rehabilitation Act of 1973 (RA), 29 U.S.C. § 794. He also asserted several state

law claims.

      The district court dismissed Boynton’s discrimination claim under Rule

12(b)(6) and his § 1983 deliberate indifference claim against Norton on the basis of

qualified immunity. The court later granted summary judgment to the defendants

on Boynton’s remaining § 1983 claims. It held that the defendants had not violated


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any constitutional right, and that, if they had, they would be entitled to qualified

immunity. The district court declined to exercise supplemental jurisdiction over

Boynton’s state law claims and dismissed them without prejudice. 3 He appealed.

                                              II.

       Boynton first challenges the dismissal of his ADA and RA discrimination

claims against the City. We review de novo the dismissal of a claim under Rule

12(b)(6), “accepting the allegations in the complaint as true and construing them in

the light most favorable to the plaintiff.” Butler v. Sheriff of Palm Beach Cty., 685

F.3d 1261, 1265 (11th Cir. 2012). To survive a motion to dismiss, the plaintiff

must plead sufficient facts “to state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009). “A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. We will affirm the district court’s dismissal of a claim for any reason

supported by the record. Allen v. USAA Cas. Ins. Co., 790 F.3d 1274, 1278 (11th

Cir. 2015).

       The ADA and the RA prevent public entities and the recipients of federal

funding from discriminating against disabled individuals. See Barnes v. Gorman,

536 U.S. 181, 184–85, 122 S. Ct. 2097, 2100 (2002). To state a claim for

       3
        Boynton does not appeal the dismissal without prejudice of his state law claims apart
from appealing the dismissal of all his claims.
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compensatory damages under either statute, 4 a private plaintiff must show that the

defendant acted “with discriminatory intent.” McCullum v. Orlando Reg.

Healthcare Sys., Inc., 768 F.3d 1135, 1146–47 (11th Cir. 2014); see Delano-Pyle v.

Victoria Cty., Tex., 302 F.3d 567, 574 (5th Cir. 2002) (“A plaintiff asserting a

private cause of action for violations of the ADA or the RA may only recover

compensatory damages upon a showing of intentional discrimination.”). That

requires proof the defendant either intentionally discriminated against the plaintiff

or was “deliberately indifferent to his statutory rights.” McCullum, 768 F.3d at

1147 (quotation marks omitted). “To establish deliberate indifference, a plaintiff

must show that the defendant knew that harm to a federally protected right was

substantially likely and failed to act on that likelihood.” Id. (quotation marks and

alteration omitted).

       In his third amended complaint, Boynton asserts that Norton’s actions were

“intentional and/or deliberately indifferent” to his rights under the ADA and the

RA. But he does not allege any factual basis for that conclusion. See Randall v.

Scott, 610 F.3d 701, 709–10 (11th Cir. 2010) (explaining that a legal conclusion

must be supported by factual allegations to survive a motion to dismiss). Boynton

alleges only that Norton should have recognized his erratic behavior as “consistent

with [an individual] suffering a diabetic crisis.” But that does not suggest Norton

       4
         Boynton sought both compensatory and punitive damages, but punitive damages are not
available in private suits under either statute. See Barnes, 536 U.S. at 189, 122 S. Ct. at 2103.
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actually knew that Boynton was disabled or knew that his actions were

substantially likely to violate Boynton’s rights under the ADA or the RA. See

McCullum, 768 F.3d at 1147. Because he has not alleged any facts showing that

Norton acted intentionally or with deliberate indifference, we affirm the dismissal

of Boynton’s statutory discrimination claims.

                                         III.

      Boynton next challenges the district court’s grant of summary judgment to

the defendants on his constitutional claims under § 1983. “We review de novo a

district court’s grant of summary judgment,” drawing “all inferences and

review[ing] all evidence in the light most favorable to the non-moving party.”

Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012).

“Summary judgment is appropriate when the record discloses no genuine issue of

material fact and that the moving party is entitled to judgment as a matter of law.”

Harbert Int’l, Inc. v. James, 157 F.3d 1271, 1277 (11th Cir. 1998). We “will affirm

a grant of summary judgment if it is correct for any reason.” United States v.

$121,100.00 in U.S. Currency, 999 F.2d 1503, 1507 (11th Cir. 1993).

                                         A.

      Boynton first contends that medics Ellison and Cameron treated his medical

needs with deliberate indifference in violation of the Fourteenth Amendment. To

prevail on that claim, he must show (1) an objectively serious medical need; (2) the


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medics’ deliberate indifference to that need; and (3) that their indifference caused

his injuries. 5 See Gilmore v. Hodges, 738 F.3d 266, 273–74 (11th Cir. 2013). To

prove deliberate indifference, Boynton must establish that the medics “subjectively

knew of and disregarded the risk of serious harm, and acted with more than mere

negligence.” Id. at 274.

       Nothing in the record suggests that the medics knowingly disregarded any

risk associated with Boynton’s diabetes. As soon as they tested his blood sugar

and found that it was low, they treated him with intravenous dextrose. That was an

effective course of treatment, and Boynton finds no fault with it. He appears to

argue, however, that the medics might have been able to treat him more quickly if

they had not stopped to call for assistance from law enforcement. In some cases,

evidence that a defendant delayed medical treatment can support a deliberate

indifference claim, “depend[ing] on the nature of the medical need and the reason

for the delay.” Harris v. Coweta Cty., 21 F.3d 388, 393–94 (11th Cir. 1994). This

is not one of those cases. The medics began to assess Boynton as soon as they

arrived, and they withdrew and called for help only after he physically resisted

them. After Norton’s intervention, the medics resumed their efforts right away.

Given the circumstances, no reasonable juror could conclude that the medics


       5
          Boynton must also show that he was in state custody while being treated. See Wideman
v. Shallowford Cmty. Hosp., Inc., 826 F.2d 1030, 1034–35 (11th Cir. 1987). The parties dispute
that issue, but because his claim fails on other grounds, we do not address it.
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treated Boynton’s medical needs with indifference, much less deliberate

indifference.6

                                              B.

       Boynton next contends that Norton used excessive force when he repeatedly

tased him. “We analyze a claim of excessive force under the Fourth Amendment’s

‘objective reasonableness’ standard.” Oliver v. Fiorino, 586 F.3d 898, 905 (11th

Cir. 2009) (citation omitted). To decide whether the force used was reasonable, we

examine “(1) the need for the application of force, (2) the relationship between the

need and amount of force used, and (3) the extent of the injury inflicted.” Draper

v. Reynolds, 369 F.3d 1270, 1277–78 (11th Cir. 2004) (footnote omitted). The

amount of force used must be “reasonably proportionate to the need for that force,

which is measured by the severity of the crime, the danger to the officer, and the

risk of flight.” Id. at 1277 n.13. We consider the totality of the circumstances

from the perspective of a reasonable officer on the scene, not “with the 20/20

vision of hindsight.” Oliver, 586 F.3d at 905 (quotation marks omitted).




       6
         Boynton also argues that the medics should be held liable for the injuries he suffered
when Norton tased him because, he claims, Cameron lied to Norton about Boynton’s drug use,
which influenced Norton’s decision to tase him. What Cameron actually said is that she thought
Boynton might be on illegal drugs. The evidence that Boynton points to would not support a
reasonable inference that Cameron did not have a good faith belief that Boynton was on illegal
drugs. See Ave. CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d 1287, 1294 (11th Cir. 2013)
(“All reasonable inferences arising from the undisputed facts should be made in favor of the
nonmovant, but an inference based on speculation and conjecture is not reasonable.”).
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      When we view the evidence in the light most favorable to Boynton, Norton’s

use of force appears to be excessive. He did respond to a call about a “combative”

medical patient, but by the time he arrived Boynton was not combative at all. In

fact, he was barely responsive, lying immobile on the floor of the ambulance.

When Norton told him to get onto the stretcher, Boynton did not move, but he also

did not struggle or argue when Norton moved him. Norton admits that the only

“resistance” he encountered was when Boynton “tensed” his body, making it

difficult for him to reposition Boynton on the stretcher. In response, Norton tased

Boynton nine times, eight of which were after Boynton had agreed to comply with

Norton’s demands. Based on those facts, a reasonable juror could conclude that

Norton’s use of force was disproportionate to any threat Boynton posed and was

unreasonably excessive under the circumstances.

      Norton emphasizes that the police department’s use of force policy allows

officers to use a “stun gun” on suspects who exhibit “active physical resistance,”

which is defined to include “bracing or tensing.” Two things about that. First, that

policy does not guide our analysis — the Fourth Amendment does. Second, we do

not suggest that “tensing” will never justify the use of a stun gun or taser under any

circumstances. We hold only that from the evidence in the record a jury could find

Norton’s use of a taser on Boynton nine times was unreasonable under the

circumstances.


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      Norton contends that he is nonetheless entitled to qualified immunity, which

protects government officials acting within their discretionary authority unless they

violate a “clearly established” right. Lee v. Ferraro, 284 F.3d 1188, 1193–94 (11th

Cir. 2002). The parties agree that Norton was acting within his discretionary

authority. To decide whether a right is “clearly established,” we consider whether,

based on the law applicable at the time of the alleged violation, it would have been

“clear to a reasonable officer that his conduct was unlawful in the situation he

confronted.” Saucier v. Katz, 533 U.S. 194, 202, 121 S. Ct. 2151, 2156 (2001).

When this incident occurred in 2010, it would have been.

      In 2009 this Court considered the reasonableness of an officer’s repeated use

of a taser on an individual who was not accused of any crime; who did not pose an

immediate threat to the officer or others; who was not belligerent or aggressive;

and who was not trying to flee or evade arrest. Oliver, 586 F.3d at 906–07. The

officer in Oliver deployed her taser “at least eight and as many as eleven or twelve

times,” even after the individual was “immobilized,” “limp,” and “writhing in

pain.” Id. at 908. Under those circumstances, we held that the officer was not

entitled to qualified immunity because the force used was “so plainly unnecessary

and disproportionate that no reasonable officer could have thought that [it] was

legal.” Id. In light of Oliver, a reasonable officer in Norton’s position would have

known that repeatedly tasing Boynton, who was not argumentative, aggressive, or


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mobile, was unreasonable under the Fourth Amendment. Norton is not entitled to

qualified immunity on Boynton’s excessive force claim at this time. 7

                                                C.

       Finally, Boynton contends that the City is liable for Norton’s use of

excessive force. “To establish the liability of a city or county under section 1983,

the plaintiff must show that [his] constitutional deprivation resulted from a custom,

policy, or practice of the municipality.” Wideman, 826 F.2d at 1032. Boynton

tries to do that in two ways: First, he argues that the police department’s policies

condone the use of excessive force. Second, he argues that the police department

failed to adequately train Norton. Both arguments fail.

       In 2010 the Tallahassee police department’s electronic control device policy

provided that the “decision to deploy [a taser] shall involve an arrest or custodial

situation during which the [subject] escalates resistance . . . from passive physical

resistance to active physical resistance and the subject: (1) [h]as the apparent

ability to physically threaten the officer or others, or (2) [i]s preparing to, or is

attempting to, flee or escape.” The department’s force continuum, in turn, defines

“active physical resistance” as “physically evasive movements to defeat the


       7
         We note that the “facts, as accepted at the summary judgment stage of the proceedings,
may not be the actual facts of the case.” Oliver, 586 F.3d at 901 (quotation marks omitted). We
hold only that the facts presented to us, when viewed in the light most favorable to Boynton, do
not support Norton’s claim of qualified immunity. The evidence at trial may, of course, prove
otherwise. The district court can revisit the qualified immunity issue if it becomes appropriate to
do so.
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officer’s attempt at control,” including “bracing or tensing, attempts to push or pull

away, running away, or not allowing the officer to get closer.” When a suspect

displays active physical resistance, an officer can “appl[y] a baton, stun gun, or

flashlight (used as an impact weapon) to control the suspect.”

      Boynton first asserts that the department’s use of force policy encourages

excessive force because it allows officers to use a taser in response to “bracing or

tensing.” As we have said, however, under a different set of facts, resistance like

bracing or tensing might justify some limited use of a stun gun or taser. See, e.g.,

Draper, 369 F.3d at 1277–78 (holding that an officer’s “single use of [a] taser” to

gain control of a “hostile, belligerent, and uncooperative” suspect did not violate

the Fourth Amendment). Not only that, but the policy provides that officers “are

expected to use only that force reasonably necessary to effectively bring a suspect

[or] incident under control.” That cannot be interpreted as condoning the repeated

tasing of an unresponsive medical patient lying face down on an ambulance

stretcher.

      Boynton also points out that the deputy police chief testified that the use of

force policy “just addresses compliance.” From that, Boynton argues that the

department instructs its officers to continue applying force until a suspect complies

with their orders, which, he says, results in the use of excessive force. But the

deputy chief also testified that officers were only allowed to use force to gain


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compliance “subject to reasonableness.” Authorizing the continued use of

reasonable force is not the same as authorizing the use of excessive force. In sum,

Boynton has not shown that any department custom, policy, or practice endorsed

or encouraged Norton’s use of excessive force in this case.

      Boynton also claims that the Tallahassee police department failed to

adequately train Norton in the use of force involving tasers and in identifying

medical emergencies like diabetic seizures. To hold a municipality liable under

§ 1983 for the failure to train its employees, the plaintiff must “present some

evidence that the municipality knew of a need to train . . . in a particular area and

the municipality made a deliberate choice not to take any action.” Gold v. City of

Miami, 151 F.3d 1346, 1350 (11th Cir. 1998) (quotation marks omitted). Boynton

has not provided any “evidence of a history of widespread prior abuse” in the

department involving either the use of tasers or the identification of medical

emergencies that would have put the City “on notice of the need for improved

training and supervision” in those areas. Id. at 1351.

                                          IV.

      We AFFIRM the district court’s dismissal of Boynton’s ADA and RA

discrimination claims; the district court’s grant of summary judgment to Ellison

and Cameron on Boynton’s § 1983 deliberate indifference claim; and its grant of

summary judgment to the City on Boynton’s § 1983 municipal liability claim. We


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REVERSE the district court’s grant of summary judgment to Norton on Boynton’s

§ 1983 excessive force claim. Because the dismissal of Boynton’s state law claims

was predicated on the judgment against him on all federal claims, we REVERSE

the district court’s dismissal of those state law claims.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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