                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________
                                                                FILED
                             No. 08-11493              U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                         Non-Argument Calendar
                                                             OCT 16, 2008
                       ________________________
                                                          THOMAS K. KAHN
                                                               CLERK
                  D. C. Docket No. 06-14168-CV-KMM

SIEGFRIED CHRISTMAN,


                                                           Plaintiff-Appellant,

                                  versus

MATTHEW PIETRZAK,


                                                          Defendant-Appellee,


BOBBY BEAMS,


                                                          Defendant.
                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                            (October 16, 2008)

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

       Plaintiff-appellant, Siegfried Christman appeals the district court’s grant of

summary judgment in favor of defendant-appellee, Matthew Pietrzak, a police

officer with the Port St. Lucie Police Department. Christman brought a claim

under 42 U.S.C. § 1983 alleging deprivation of his Fourth Amendment and due

process rights when Pietrzak arrested him for DUI. The district court granted

Pietrzak’s motion for summary judgment, based on qualified immunity. We

AFFIRM.

                                 I. BACKGROUND

      On 17 August 2005, Christman was pulled over by Officer Cotterman,

another officer with the Port St. Lucie Police Department. Cotterman was

responding to a 911 call about a white Mustang being driven in an erratic fashion

when Christman, driving a white Mustang, nearly collided with Cotterman’s patrol

car. Pietrzak appeared at the scene shortly thereafter, approached Christman’s

vehicle, asked him for his paperwork, and performed a field sobriety test. The field

sobriety test was videotaped. During the course of the stop, Pietrzak observed

many indicators suggesting that Christman was intoxicated. Pietrzak noted that

Christman smelled strongly of an alcoholic beverage, his speech was slurred and his

eyes were bloodshot and watery. When exiting his vehicle in order to execute the

                                           2
field sobriety test, Christman stumbled and nearly fell to the ground. Prior to the

sobriety test, Christman denied having any physical problems or medical

conditions. R2-70, Exh. B at 5.

      After failing the roadside field sobriety test, Christman was arrested at the

scene. Pietrzak attested in his affidavit that, following the arrest, he “read Mr.

Christman the implied consent law, however, Mr. Christman refused to submit to a

breath test.” Id. Christman denied that Pietrzak read him the implied consent law

and claimed that Pietrzak refused his offer to undergo blood or urine tests at the

police station after his arrest. R1-19 at 4.

      Christman filed a § 1983 claim with the district court against Pietrzak and

Bobby Beams, a hearing officer with the Bureau of Administrative Reviews of the

Florida Department of Highway Safety and Motor Vehicles, related to his DUI

arrest and the subsequent suspension of his driver’s license. In his complaint,

Christman also raised an issue regarding medical treatment, contending that law

enforcement’s priority is the DUI investigation procedure and not providing

medical care. Christman claimed that his erratic driving and behavior may have

been the result of a medical condition, “cardiac problems,” although he offered no

evidence to support this claim.

      Pietrzak and Beams each filed a motion for summary judgment. Both



                                               3
claimed qualified immunity and cited Christman’s failure to state a claim under

which relief can be granted under § 1983. The magistrate judge recommended to

the district court that both motions for summary judgment be granted. The district

court adopted the magistrate judge’s report and recommendation and granted

summary judgment for both Pietrzak and Beams, finding that Pietrzak was entitled

to qualified immunity and that Beams was entitled to absolute quasi-judicial

immunity. The district court found no merit in Christman’s medical health claim,

noting the lack of any evidence that Christman had an actual cardiac condition or

was suffering from one at the time of his arrest.

          Christman now appeals the district court’s grant of summary judgment in

favor of Pietrzak.1 Christman raises three arguments on appeal: (1) the district

court erred in granting summary judgment because there was a genuine issue of

material fact which precludes summary judgment; (2) Pietrzak was not entitled to

qualified immunity; and (3) Pietrzak deprived Christman of his due process rights

by ignoring his offer to take a blood or urine test at the police station following his

arrest.




          1
        Christman has not appealed the district court’s grant of summary judgment in favor of
Beams. Issues not raised on appeal are considered abandoned. United States v. Ford, 270 F.3d
1346, 1347 (11th Cir. 2001)(per curium).

                                              4
                                  II. DISCUSSION

      We review a district court’s decision regarding summary judgment on a

§ 1983 claim de novo. Cagle v. Sutherland, 334 F.3d 980, 985 (11 th Cir. 2003)(per

curium). We use the same legal standards as the district court and draw evidentiary

inferences in favor of the nonmoving party. Id. We now address each of

Christman’s arguments in turn.

A.    Whether a Genuine Issue of Material Fact Precluded the District Court from
      Granting Summary Judgment

      A moving party is entitled to summary judgment if there is no genuine issue

of material fact, leaving final judgment to be decided as a matter of law. See

Federal Rule of Civil Procedure 56; Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 586-87, 106 S. Ct. 1348, 1355-56 (1986). The facts, and any

reasonable inferences therefrom, are to be viewed in the light most favorable to the

non-moving party, with any doubt resolved in the non-movant’s favor. See Adickes

v. S. H. Kress & Co., 398 U.S. 144, 158, 90 S. Ct. 1598, 1609 (1970). Once met

by the moving party, however, the burden shifts to the non-moving party to come

forward with evidence to establish each element essential to that party’s case

sufficient to sustain a jury verdict. See Celotex Corp. v. Catrett, 477 U.S. 317, 322,

106 S. Ct. 2548, 2552 (1986); Earley v. Champion Int’l Corp., 907 F.2d 1077, 1080

(11th Cir. 1990). In addition, the non-moving party’s evidence on rebuttal must be

                                           5
significantly probative and not based on mere assertion or be merely colorable. See

Rule 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct.

2505, 2511 (1986).

      Christman has not met his burden as the non-moving party. He argues that

Pietrzak did not offer him a Breathalyzer test at the scene on 17 August 2005.

This directly contrasts with Pietrzak’s assertion in his affadivit that he both read

Christman the implied consent law and offered him a breathalyzer test. Christman

points to no evidence supporting his version of events, in the form of an affidavit or

otherwise, other than a recitation of allegations in his amended pleading. Given the

complete lack of evidence in support of Christman’s argument, the district court

properly disregarded Christman’s argument that the previously discussed

discrepancy constituted a genuine issue of material fact precluding the district court

from granting summary judgment.

B. Whether Pietrzak was Entitled to Qualified Immunity

      “A government official who is sued under § 1983 may seek summary

judgment on the ground that he is entitled to qualified immunity.” Crosby v.

Monroe County, 394 F.3d 1328, 1332 (11th Cir. 2004). Eligibility for qualified

immunity is a well-settled area of the law in this circuit. We have held that “[t]o be

eligible for qualified immunity, ... [an] official must first establish that he was



                                            6
performing a ‘discretionary function’ at the time the alleged violation of federal law

occurred.” Id. The burden then shifts to the plaintiff to demonstrate that the official

is not entitled to qualified immunity. Id. In order to do so, “the plaintiff must show

two things: (1) that the defendant has committed a constitutional violation and (2)

that the constitutional right the defendant violated was ‘clearly established’ at the

time he did it.” Id.

      Pietrzak met the threshold requirement for qualified immunity – establishing

that he was performing a discretionary function at the time the alleged violation of

federal law occured. Making an arrest is clearly within the official responsibilities

of a police officer. Id. We now turn to the question of whether qualified immunity

entitled Pietrzak to summary judgment insofar as the Fourth Amendment and due

process claims brought against him are concerned. First, we address Christman’s

Fourth Amendment claim.

      The district court correctly characterizes “arguable probable cause” as

dispositive to questions of both Pietrzak’s claim of qualified immunity and

Christman’s Fourth Amendment rights. R2-81 at 6. It is well established in our

circuit that when there is “arguable probable cause for an arrest,” “qualified

immunity applies” “even if actual probable cause did not exist.” Crosby, 394 F.3d

at 1332; Jones v. Cannon, 174 F.3d 1271, 1283 n.3 (11th Cir. 1999)(“Arguable



                                            7
probable cause, not the higher standard of actual probable cause, governs the

qualified immunity inquiry.”). The record in this case contains ample evidence that

Pietrzak met the standard of arguable probable cause for an arrest.2 As noted by the

district court, there was the interview with the private citizen who called in the 911

report, Officer Cotterman’s observations of erratic driving and physical signs of

intoxication, Pietrzak’s own observations of physical signs of intoxication,

Christman’s denial of any medical condition, and the failed roadside sobriety test.

      As Pietrzak clearly had arguable probable cause to arrest Christman,

Christman’s Fourth Amendment rights were not violated. As such, Christman’s

challenge of Pietrzak’s entitlement to qualified immunity as regards his Fourth

Amendment argument fails on the first prong and the inquiry need go no further.

We now consider Christman’s final argument.

C. Whether Pietrzak Deprived Christman of his Due Process Rights by Ignoring his
Offer to Take a Blood or Urine Test at the Police Station Following his Arrest

      Christman argues that Pietrzak ignored his request to take a blood or urine

test at the police station following his arrest. He reasons that such a test, if

performed, would have provided objective evidence that he was not intoxicated at

the time of his arrest and so the subsequent one-year suspension of his driver’s


       2
        Crosby, 394 F.3d at 1332 (“Arguable probable cause exists if, under all of the facts and
circumstances, an officer reasonably could – not necessarily would – have believed that probable
cause was present.”).

                                               8
licence would not have occurred. Thus, Christman argues, Pietrzak violated his due

process rights. Furthermore, Christman argues that Pietrzak was not entitled to

qualified immunity as regards his due process claim because Pietrzak was not

exercising a discretionary function when he ignored Christman’s request to take the

blood or urine test.

      Christman’s argument is misplaced. Although more properly styled as a

procedural due process claim, our analysis need not proceed that far.3 Pietrzak was

entitled to qualified immunity when he arrested Christman at the scene on 17

August 2005. The district court correctly found that Pietrzak was not accountable

for the constitutionality or the conduct of any of the proceedings against Christman

as a consequence of his DUI arrest. R2-81 at 7.

                                    III. CONCLUSION

      Christman appeals the district court’s grant of summary judgment to Pietrzak.

Christman argued both that the district court overlooked a genuine issue of material

fact and that Pietrzak was not entitled to qualified immunity concerning his Fourth

Amendment and due process claims. We conclude that the district court’s decision



       3
           Zinermon v. Burch, 494 U.S. 113, 126, 110 S. Ct. 975, 983 (1990)(“The constitutional
violation actionable under § 1983 is not complete when the deprivation occurs; it is not complete
unless and until the State fails to provide due process.”); McKinny v. Pate, 20 F.3d 1550, 1557
(11th Cir. 1994). Christman had ample opportunity to contest the suspension of his driver’s
license at an administrative hearing held for that purpose. R70, Exh. F.

                                               9
is without error. Accordingly, the district court’s judgment is AFFIRMED.




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