                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT            FILED
                     ________________________ U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                            No. 09-15103                  MAY 13, 2010
                        Non-Argument Calendar              JOHN LEY
                      ________________________               CLERK


              D. C. Docket No. 08-00518-CV-ORL-28-DAB

ROBERT A MILLS,

                                                    Plaintiff-Counter-
                                                    Defendant-Appellee,

                                 versus

SHERIFF J.R. JACK PARKER,

                                                    Defendant-Counter-
                                                    Claimant,

AGENT RANDY HOLIDAY, et al.,

                                                    Defendants,

DEPUTY JONATHAN KENT,

                                                    Defendant-Appellant.

                      ________________________

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

                             (May 13, 2010)
Before EDMONDSON, BIRCH and BARKETT, Circuit Judges.

PER CURIAM:

      Deputy Jonathan Kent appeals the district court’s order denying his motion

for summary judgment based on qualified immunity in a pro se civil rights action

filed by Robert Mills, pursuant to 42 U.S.C. § 1983, alleging the application of

excessive force during an arrest. On appeal, Deputy Kent argues that the district

court erred in denying him qualified immunity because he did not violate any

clearly established right, and the court incorrectly analyzed whether Mills had a

clearly established right to be free from the force used by Kent under the

circumstances. We affirm.

      On interlocutory appeal, we review de novo the district court’s denial of

summary judgment as to qualified immunity. Bozeman v. Orum, 422 F.3d 1265,

1267 (11th Cir. 2005). “In doing so, we do not make credibility determinations or

choose between conflicting testimony, but instead accept Plaintiff’s version of the

facts drawing all justifiable inferences in Plaintiff’s favor.” Id.

      Accordingly, in the light most favorable to Mills, the record shows the

following facts: A police officer named Agent Holliday had called Mills on

multiple occasions and asked him to come to the sheriff’s office and provide him

with the names of individuals suspected of stealing handguns, but Mills told him



                                            2
that he did not know of anyone. On the morning of his arrest, when Deputy Kent

and Agent McCarty entered his bedroom Mills was asleep. They each, separately

and loudly, ordered Mills to show his hands, but he did not respond. Mills alleged

that he was unaware and unresponsive because he had taken two Xanax pills

during the night. Agent McCarty, who had reholstered his gun when he saw Mills

asleep, grabbed Mills by the right arm and Deputy Kent punched him in the face

before he had a chance to say or do anything, causing severe facial trauma. Mills

alleged that Deputy Kent punched him in retaliation for refusing to talk to the

police and said that after he was handcuffed and arrested, Agent Holliday told him,

“This is what happens to you when you don’t come to see me when I tell you to.”

      In one of the arresting officer’s police reports attached to the complaint,

Agent Douglas McCarty stated that the officers went to Mills’s home to serve an

arrest warrant in relation to Mills’s recent purchase of a stolen firearm. The report

noted that Mills had been convicted of drug and property related offenses, and:

      While [Mills did] not have a violent past, he has resisted several
      attempts by Agent Holliday to make contact with him over the past
      several days. Due to his unwillingness to cooperate in the
      investigation, and the fact probable cause existed for the charge of
      possession of a firearm by a felon, a warrant for his arrest was
      secured.

      Mills claims that he did not resist the officers in any way and the first thing

that he remembered was being pulled off the bed and bleeding. After his arrest,

                                           3
Mills was immediately taken to the emergency room to receive medical treatment

for fractures to the orbital area, sinus cavity, and nose along with other medical

complications. The attending physician reported that Mills was “uncommunicative

and somewhat groggy with diminished mental status,” and she was “unable to

open the eye to assess the pupil or the orbit” due to a “large preorbital hematoma

around the left eye.”   He was admitted to the hospital, where he was treated in

intensive care for two days. Ultimately, Mills was charged with possession of

cocaine and resisting arrest without violence, and he was found guilty on the drug

charge and acquitted of the resisting arrest charge.

      At the outset, it is undisputed that Deputy Kent was acting within his

discretionary authority when he arrested Mills, and thus the burden shifts to Mills

to show that qualified immunity does not apply. Resolving all issues of material

fact in Mills’s favor, the district court found the following: (1) the crime at issue

involved possession of a handgun by a convicted felon, and Mills “willingly turned

[the handgun] over to Holliday” prior to the date of his arrest; (2) Mills did not

hear the officers’ commands to show his hands because he was asleep due to an

overdose of Xanax; (3) Mills was not passively resisting arrest; (4) Mills sat up in

bed upon awakening while McCarty held his left arm; (5) Deputy Kent hit Mills

multiple times; and (6) Mills did not pull away or display any hostile movements.



                                            4
Viewing the evidence in the light most favorable to Mills, the district court

determined that (1) the crime at issue was not severe considering that Mills was

charged with possession of a firearm as a convicted felon, but he previously had

given the firearm to Agent Holliday; (2) Mills did not pose an immediate safety

threat because his prior convictions involved drug and property crimes, Agent

McCarty recognized that Mills did not have a violent past, and he was physically

nonresponsive to the officers’ shouted verbal commands due to an overdose of

Xanax; (3) Mills did not try to evade arrest because he was incapable of resisting

arrest considering the medical records of his semi-conscious and lethargic state due

to the drug overdose; (4) Deputy Kent did not need to punch Mills in the face in

order to control the situation because Agent McCarty already had secured Mills’s

arm and had put away his weapon once he saw that Mills was asleep; (5) the

amount of force used was excessive, especially considering Mills’s torpid physical

condition; (6) Mills suffered multiple fractures to his facial bones due to Deputy

Kent’s force, was hospitalized and, contrary to Deputy Kent’s assertions, Mills’s

attending physician recommended a follow-up appointment and a consultation for

maxillofacial surgery; and (7) in light of Agent Holliday’s frustration that Mills did

not assist in his investigation and Deputy Kent’s apparent intent to beat Mills again

even after Mills was at the police station, Deputy Kent likely did not act in good



                                           5
faith when he punched Mills.

      We find no error in the district court’s determinations. As we have held,

gratuitous use of force when a criminal suspect is not resisting arrest constitutes

excessive force. See Reese v. Herbert, 527 F.3d 1253, 1273-74, (11th Cir. 2008);

Hadley v. Gutierrez, 526 F.3d 1324, 1334, (11th Cir. 2008); Vinyard v. Wilson, 311

F.3d 1340, 1346 (11th Cir. 2002); Slicker v. Jackson, 215 F.3d 1225, 1232-33

(11th Cir. 2000). Moreover, this Court’s precedent gave clear notice to a

reasonable officer that excessive force used without justification was

unconstitutional. Pearson, __ U.S. __ , 129 S.Ct. at 815-16, 818; Vinyard, 311

F.3d at 1346; Slicker, 215 F.3d at 1232-33. This Court has held that where a

plaintiff alleges that the defendants used excessive force maliciously and

sadistically to cause harm, the defense of qualified immunity is unavailable

because the right to be free from gratuitous force after a suspect has been subdued

is a clearly established constitutional right. See Slicker, 215 F.3d at 1232-33.

Accordingly, Mills is entitled to a trial on his § 1983 claim against Deputy Kent

and the district court is instructed to appoint counsel to represent Mills in further

proceedings.

      AFFIRMED.




                                           6
