                                                                       [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT                           FILED
                                                                   U.S. COURT OF APPEALS
                        ------------------------------------------- ELEVENTH CIRCUIT
                                                                       OCTOBER 1, 2007
                                     No. 06-15743
                                                                      THOMAS K. KAHN
                               Non-Argument Calendar
                                                                           CLERK
                        --------------------------------------------

                       D.C. Docket No. 06-00146-CV-UWC

L. C. HALL,

                                                         Plaintiff-Appellee,

                                          versus

STATE OF ALABAMA DEPARTMENT OF
PUBLIC SAFETY,

                                                         Defendant,

TROOPER JEREMY LETT,

                                                         Defendant-Appellant.

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                   Appeal from the United States District Court
                        for the Northern District of Alabama
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                                  (October 1, 2007)

Before EDMONDSON, Chief Judge, DUBINA and CARNES, Circuit Judges.
PER CURIAM:


      Officer Jeremy Lett (“Defendant”), an Alabama State Trooper, appeals the

district court’s order denying his motion to dismiss on qualified immunity grounds

the section 1983 claims brought by L.C. Hall (“Plaintiff”). No reversible error has

been shown; we affirm.

      This case arises out of a traffic stop conducted by Defendant. Plaintiff

claims that Defendant violated his constitutional rights by using excessive force

and by making an unreasonable arrest. After Plaintiff filed his initial complaint,

all defendants filed a motion to dismiss. The district court dismissed with

prejudice all claims against the State of Alabama and the Alabama Department of

Public Safety based on sovereign immunity. The district court also dismissed

without prejudice all claims against Defendant, but allowed Plaintiff to amend his

complaint. Plaintiff’s amended complaint alleged the following facts.

      In 2004, Defendant stopped Plaintiff for speeding. After Defendant took

Plaintiff’s license and walked back to his patrol car, Plaintiff exited his car and

approached Defendant. Defendant then pulled out his nightstick and mace and

told Plaintiff to get back in his car. When Plaintiff asked Defendant if he was

going to beat him, Defendant ordered Plaintiff up against the car, grabbed



                                           2
Plaintiff’s arms, and told Plaintiff to get down. Because of a recent knee surgery,

Plaintiff was slow to comply with these orders. Defendant then began to beat

Plaintiff with the nightstick. Plaintiff then ran into oncoming traffic to escape the

beating, but several civilians and Defendant charged Plaintiff and knocked him to

the ground. After handcuffing the Plaintiff, Defendant sprayed Plaintiff with mace

and then pushed him into another officer’s patrol car.

      The district court summarily denied Defendant’s motion to dismiss

Plaintiff’s amended complaint on qualified immunity grounds. A denial of

qualified immunity on a motion to dismiss is an immediately appealable

interlocutory order, which we review de novo. Dacosta v. Nwachukwa, 304 F.3d

1045, 1047 (11th Cir. 2002). We accept all well-pleaded factual allegations in the

complaint as true and construe the facts in the light most favorable to the

non-moving party. Id.

      Defendant argues that the district court erred in denying his motion to

dismiss on qualified immunity grounds. He contends that a reasonable officer in

his position could have reasonably believed that each of his acts were necessary to

subdue Plaintiff, who had resisted arrest and had attempted to flee. Accepting

Plaintiff’s allegations as true, however, we conclude that the district court

correctly denied Defendant’s motion to dismiss because Defendant has failed to

                                          3
show that Plaintiff can prove no set of facts to establish a violation of his clearly

established rights.

       “The use of excessive force in carrying out an arrest constitutes a violation

of the Fourth Amendment.” Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th Cir.

2002). “Use of force must be judged on a case-by-case basis from the perspective

of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight.” Vinyard v. Wilson, 311 F.3d 1340, 1347 (citations and internal

quotation marks omitted). Whether the force applied was excessive depends on

“(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 and citation

omitted). The need for the application of force is measured by (1) the severity of

the crime; (2) the danger to the officer or others; and (3) the risk of flight by the

suspect. See Vinyard, 311 F.3d at 1347.

      Plaintiff’s allegation that Defendant sprayed him with mace after Plaintiff

had already been subdued and handcuffed is sufficient to survive Defendant’s

motion to dismiss. In Vineyard, we said that “using pepper spray is excessive

force in cases where the crime is a minor infraction, the arrestee surrenders, is

secured, and is not acting violently, and there is no threat to the officers or anyone

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else.” 311 F.3d at 1348. We also explained that “using pepper spray is

reasonable, however, where the plaintiff was either resisting arrest or refusing

police requests, such as requests to enter a patrol car or go to the hospital.” Id.

       Although Plaintiff’s amended complaint concedes that he did not comply

with Defendant’s orders and even tried to escape, Plaintiff also alleges that after

he was already subdued in handcuffs, Defendant sprayed him with mace. Having

no facts before us that Plaintiff, at that point, continued to resist arrest, to refuse

police requests, to act violently, or to pose a threat to others -- facts that Defendant

might be able to prove at a later stage -- we conclude that Plaintiff’s allegations

are sufficient to show a violation of Plaintiff’s clearly established rights under

Vinyard.1 Therefore, the district court’s order denying Defendant’s motion to

dismiss Plaintiff’s amended complaint on qualified immunity grounds is affirmed.2

       AFFIRMED.

   1
     We do not decide whether Defendant’s other acts (grabbing Plaintiff’s arms, striking Plaintiff
with a nightstick after he failed to comply with orders, taking Plaintiff down after he attempted to
flee, and pushing Plaintiff into a patrol car) are necessarily -- by themselves -- constitutionally
unreasonable or, if unreasonable, would be sufficient to defeat qualified immunity. We note,
however, that “[t]he right to make an arrest or investigatory stop necessarily carries with it the right
to use some degree of physical coercion or threat thereof to effect it.” Vinyard, 311 F.3d at 1347
(quoting Graham v. Connor, 109 S.Ct. 1865, 1865 (1989)). Also, “[n]ot every push or shove, even
if it may later seem unnecessary in the peace of a judge’s chambers, . . . violates the Fourth
Amendment.” Graham v. Connor, 109 S. Ct. 1865, 1872 (1989) (citation and internal quotation
marks omitted).
   2
     Defendant does not argue and we do not address the issue of Eleventh Amendment immunity
for claims brought against Defendant in his official capacity. We affirm only the district court’s
denial of qualified immunity for claims brought against Defendant in his individual capacity.

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