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                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-12263
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 2:13-cv-00566-JES-DNF



JAMES FRED BARFIELD,

                                                      Plaintiff - Appellant,

versus

KEVIN RAMBOSK, et al.,

                                                      Defendants - Appellees.

                      ________________________

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

                            (December 29, 2015)

Before MARTIN, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:
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      James Fred Barfield appeals the district court’s grant of summary judgment,

based on qualified immunity, in favor of the police officers he sued for false arrest,

excessive force, and negligent infliction of emotional distress. After review of the

parties’ briefs and the record, we affirm.

                                             I

      On July 29, 2011, Mr. Barfield was arrested for violations of Florida law

arising from a suspicious vehicle investigation by the Collier County Sheriff’s

Department. In his action under 42 U.S.C. § 1983, Mr. Barfield alleged that he

was seized, detained, and arrested without a warrant and without probable cause,

and that Deputies DiPaolo, Chapman, Casey and Wingo used excessive and

unnecessary force in effecting his arrest in violation of the Fourth Amendment. He

also asserted a state law claim for negligent infliction of emotional distress. The

facts, viewed in the light most favorable to Mr. Barfield, are as follows.

      On the morning in question, Mr. Barfield, a large man about 70 years of age,

was driving to Naples. He did not feel well, but kept driving. When he started to

feel worse, he got off the highway and pulled into Freedom Square Plaza to get

something to drink. He recalls trying to exit his car, but was unable to stand up

and remained in his car with the engine running. That evening, around 9:00 pm,

Ms. Sherry Dechert, a manager at the Dollar Tree store in Freedom Square Plaza,

called the Collier County Sheriff’s Department to report that a man inside a


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running vehicle with lights on had been parked in the parking lot for the previous

three hours. As a result, Deputy Dipaolo was dispatched to the scene to examine

the suspicious vehicle.

      For his safety, Deputy DiPaolo shut off his lights and approached Mr.

Barfield’s parked and running car. Deputy Dipaolo asked Mr. Barfield why he was

there, but Mr. Barfield did not answer. Deputy Dipaolo observed Mr. Barfield

attempt to place his big thermos in a small cup holder and sway his body back and

forth—indicators that Mr. Barfield may have been under the influence of alcohol

or a controlled substance.

      Deputy Dipaolo then asked Mr. Barfield to exit the vehicle to further

investigate the situation. Mr. Barfield complied, but with some difficulty. As he

exited the vehicle, Mr. Barfield had to use the door frame to maintain his balance,

and Deputy Dipaolo had to reach out to him at least twice to prevent him from

falling. Deputy Dipaolo asked Mr. Barfield whether he had any medical issues or

whether he had been drinking, and Mr. Barfield answered, “No.” At that point,

Deputy Dipaolo decided to handcuff Mr. Barfield for their safety, in case Mr.

Barfield tried to reach for a weapon or get behind the wheel and drive in his

condition.

      Deputy Dipaolo ordered Mr. Barfield to give him his hands to be cuffed, and

Mr. Barfield tensed up and pulled his body against his car, holding on to the door


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frame, which prevented Deputy Dipaolo from handcuffing him. Deputy Dipaolo

then asked Mr. Barfield to get on the ground, because he was not complying with

the handcuffing command. Mr. Barfield refused and attempted to get back into his

vehicle. As a result, Deputy Dipaolo tased Mr. Barfield, causing him to fall to the

ground. Deputy Dipaolo placed Mr. Barfield under arrest because he had resisted,

refused to comply with the order to get on the ground, and attempted to get back in

the car.

      Corporal Chapman then arrived as the first backup officer. Deputy Dipaolo

asked for Corporal Chapman’s help to get Mr. Barfield on his feet to be

handcuffed. As soon as Mr. Barfield was on his feet, he reached inside his car,

grabbed the steering wheel, and managed to get back inside. Corporal Chapman

and Deputy Dipaolo pulled Mr. Barfield away from his vehicle and attempted to

place his hands behind his back. Mr. Barfield continued to pull away, bracing and

tensing his arms under his body, and reaching toward his waistband while kicking

his feet, trying to get off the ground. Corporal Chapman explained that he feared

that the movement toward the waistband might have been Mr. Barfield reaching

for a weapon, and so the two officers tased Mr. Barfield again. He was tased a

total of three times in a span of 28 seconds.

      At this point, Corporals Casey and Wingo arrived and found Corporal

Chapman and Deputy Dipaolo fighting with Mr. Barfield on the ground. After


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giving Mr. Barfield several direct orders to stop resisting, Corporal Casey tased

Mr. Barfield. Corporal Chapman then applied one handcuff. Because the taser

had been ineffective, Corporal Chapman struck Mr. Barfield five times in the

upper shoulder area, a pain compliance technique. That effort proved ineffective,

and Mr. Barfield continued to grab onto his pants. Corporal Chapman tried to pry

Mr. Barfield’s fingers from his pants while Deputy Dipaolo simultaneously applied

pepper spray to Mr. Barfield’s facial area. Corporal Chapman was finally able to

apply the second handcuff.

      Collier County EMS arrived shortly thereafter and transported Mr. Barfield

to the hospital. Mr. Barfield arrived at the hospital with a closed head injury as

well as contusions to his face, elbows, knees and feet. Mr. Barfield remembers

nothing of these interactions with law enforcement.

      On appeal, Mr. Barfield argues that the district court erred in granting

summary judgment based on qualified immunity for his three claims against the

officers.

                                        II

      We review de novo the district court’s disposition of a summary judgment

motion regarding qualified immunity. See Durruthy v. Pastor, 351 F.3d 1080,

1084 (11th Cir. 2003). A motion for summary judgment should be granted when

there is no issue as to any material fact that the moving party is entitled to a


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judgment as a matter of law. See Fed. R. Civ. P. 56(c). We resolve all issues of

material fact in favor of the plaintiff, and then determine the legal question of

whether any defendant is entitled to qualified immunity under that version of the

facts. See Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002).

      A government official who is sued under 42 U.S.C. § 1983 can seek

summary judgment on the ground that he is entitled to qualified immunity. See

Hollman ex. Rel. Hollman v. Harland, 370 F.3d 1252, 1263 (11th Cir. 2004). To

decide whether a defendant is entitled to qualified immunity we engage in a two-

part inquiry. The defendant must first establish that he acted within the scope of

his discretionary authority when the allegedly wrongful acts occurred. If he did,

the burden shifts to the plaintiff to demonstrate that that the defendant violated a

constitutional right that was clearly established at the time. See Saucier v. Katz,

533 U.S. 194, 201 (2001). To determine whether a right was clearly established,

we look to binding decisions of the Supreme Court of the United States, the

Eleventh Circuit, and the Florida Supreme Court. See McClish v. Nugent, 483 F.3d

1231, 1237 (11th Cir. 2007). Based on these decisions, we ask “whether it would

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

confronted.” Saucier, 533 U.S. at 202.


      The district court ruled that Deputy Dipaolo was entitled to summary

judgment on Mr. Barfield’s § 1983 claim against him for false arrest. Mr. Barfield
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argues on appeal that Deputy Dipaolo violated his Fourth Amendment rights by

seizing him without reasonable suspicion and arresting him without probable

cause. In a § 1983 context, however, a police officer may be entitled to qualified

immunity for an arrest even without actual probable cause as long as arguable

probable cause was present. See Durruthy, 351 F.3d at 1089. Whether arguable

probable cause was present depends on the particular elements of the suspected

offense. See Crosby v. Monroe County, 394 F.3d 1328, 1333 (11th Cir. 2004).

Here, Mr. Barfield was arrested for resisting without violence in violation of

Florida Statute § 843.02 and resisting with violence in violation of Florida Statute

§ 843.01. When Mr. Barfield refused to place his hands behind his back and tried

to get back in his car, Deputy Dipaolo had at least arguable probable cause to arrest

him.   Significantly, and unfortunately, Mr. Barfield never communicated his

medical problem to Deputy Dipaolo. Therefore, the district court did not err in

concluding that there was at least arguable probable cause in this case and granting

summary judgment to Deputy Dipaolo on the claim of false arrest.

       Mr. Barfield also contends that the district court erred in granting summary

judgment to Deputy Dipaolo on the excessive force claim. To resolve whether an

officer’s use of force was reasonable given the circumstances, a court examines (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. See Draper v.

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Reynolds, 369 F.3d 1270, 1277–78 (11th Cir. 2004) (citations omitted).            Mr.

Barfield appeared to be under the influence of alcohol or a controlled substance

and was actively resisting the efforts to handcuff him.              We have held that

noncompliance or continued physical resistance to arrest justifies the use of force.

See Draper, 369 F.3d at 1278 (holding that use of a taser to effectuate an arrest did

not constitute excessive force when the suspect repeatedly refused to comply with

the officer’s verbal commands). Therefore, the district court correctly ruled that

Deputy Dipaolo’s use of a taser to control and handcuff Mr. Barfield did not

amount to excessive force in violation of the Fourth Amendment.

      We also concluded that the district court correctly granted summary

judgment on Mr. Barfield’s claims of excessive force against the other officers,

Corporal Chapman, Corporal Casey and Corporal Wingo. The force they used

against a non-compliant suspect who was resisting arrest and disobeying

commands—several uses of the taser and five blows to the upper body—were not

excessive under the circumstances. See Mann v. Taser Int’l, Inc., 588 F.3d 1291,

1306 (11th Cir. 2009) (concluding that the tasing of a woman three times, which

led to her eventual death, did not amount to excessive force where the plaintiff

actively resisted the deputies’ efforts at a lawful arrest.)




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                                           III

      Mr. Barfield sued for negligent infliction of emotional distress under Florida

law, but he failed to demonstrate that the physical impact he suffered was caused

by the officers’ negligent conduct. Indeed, Mr. Barfield conceded in district court

that his claim was improperly pled. See DE 62 at 32. Therefore, the district court

did not err in granting summary judgment on Mr. Barfield’s claim for negligent

infliction of emotional distress.

                                            IV

      We affirm the district court’s grant of summary judgment in favor of the

officers on Mr. Barfield’s § 1983 claims and his state-law claim for negligent

infliction of emotional distress.

      AFFIRMED.




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