           Case: 12-13297   Date Filed: 08/15/2013   Page: 1 of 12


                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-13297
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 6:09-cv-01737-JA-DAB

DARRELL L. JACKSON,

                                                      Plaintiff-Appellant,

                                  versus

ERIC L. CAPRAUN,
CORPORAL VIDLER,
KEVIN BEARY,
OFFICER JOHN DOE,
both capacities,

                                                      Defendants-Appellees.
                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________
                            (August 15, 2013)


Before CARNES, Chief Judge, HULL and JORDAN, Circuit Judges.

PER CURIAM:
              Case: 12-13297     Date Filed: 08/15/2013   Page: 2 of 12


      Darrell Jackson, proceeding pro se, appeals the district court’s dismissal of

his third amended complaint, in which he brought claims under 42 U.S.C. § 1983

for alleged constitutional violations stemming from his 2008 arrest in Orange

County, Florida.

                                           I.

       Jackson first contends that the district court erred when it dismissed his

claims against Keith Vidler and Eric Capraun, two officers involved in his arrest,

and Kevin Beary, the sheriff of Orange County at the time he was arrested, based

on qualified immunity. We “review de novo a district court’s order dismissing a

complaint, accepting all allegations in the complaint as true and construing the

facts in a light favorable to the plaintiff.” Fortner v. Thomas, 983 F.2d 1024, 1027

(11th Cir. 1993). A district court may dismiss a complaint for failure to state a

claim upon which relief can be granted when the complaint’s allegations “indicate

the existence of an affirmative defense, so long as the defense clearly appears on

the face of the complaint.” Id. at 1028.

      Qualified immunity protects government officials acting within their

discretionary authority “unless their conduct violates ‘clearly established statutory

or constitutional rights of which a reasonable person would have known.’”

Andujar v. Rodriguez, 486 F.3d 1199, 1202 (11th Cir. 2007). Once the defendant

has established that he was acting within his discretionary authority, “the burden


                                           2
                 Case: 12-13297       Date Filed: 08/15/2013       Page: 3 of 12


shifts to [the plaintiff] to establish that the defendants’ conduct violated clearly

established law.” Harbert Int’l v. James, 157 F.3d 1271, 1284 (11th Cir. 1998).

                                                A.

          Jackson contends that Capraun and Vidler violated his Fourth Amendment

rights by falsely arresting him. According to Jackson’s complaint, he was arrested

as part of a sting set up by the Orange County Sheriff’s Department to catch

bicycle thieves. Vidler placed a bike in the street and the officers watched it.

Unaware of the watching officers, Jackson picked up the bike and rode away on it.

Capraun monitored Jackson as he rode away, and another officer 1 arrested him.

After Jackson’s arrest, Capraun transported him to the booking center.

          The allegations indicate that in placing the bicycle on the street and arresting

Jackson, Vidler and Capraun were participating in a sting operation that was

“undertaken pursuant to the performance of” their duties as police officers and was

therefore within the scope of their authority. See Harbert Int’l, 157 F.3d at 1282.

The burden then shifts to Jackson to show that they violated his constitutional

rights.

          “A warrantless arrest without probable cause violates the Fourth

Amendment and forms a basis for a section 1983 claim.” Rodriguez v. Farrell, 280

F.3d 1341, 1345 (11th Cir. 2002). “Probable cause to arrest exists when law

          1
         Jackson did not know the name of this third officer but alleged that he also violated his
constitutional rights. We discuss that claim in Section II.
                                                 3
              Case: 12-13297      Date Filed: 08/15/2013    Page: 4 of 12


enforcement officials have facts and circumstances within their knowledge

sufficient to warrant a reasonable belief that the suspect had committed or was

committing a crime.” United States v. Floyd, 281 F.3d 1346, 1348 (11th Cir.

2002). “In the context of a claim for false arrest, an officer is entitled to qualified

immunity where that officer had arguable probable cause, that is, where reasonable

officers in the same circumstances and possessing the same knowledge as the

Defendants could have believed that probable cause existed to arrest the plaintiff.”

Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006) (quotation marks omitted).

      Under Florida law, a defendant commits theft if he:

      knowingly obtains or uses . . . the property of another with intent to,
      either temporarily or permanently:

      (a) Deprive the other person of a right to the property or a benefit
      from the property.

      (b) Appropriate the property to his or her own use or to the use of any
      person not entitled to the use of the property.

Fla. Stat. § 812.014(1). Because the officers saw Jackson appropriate a

bicycle that he knew was not his, they had arguable probable cause to arrest

him for theft. Jackson argues that he believed the bike had been abandoned,

but a reasonable officer still could have concluded that Jackson took the bike

with the intent to appropriate the property of another, in violation of Fla.




                                           4
                Case: 12-13297        Date Filed: 08/15/2013       Page: 5 of 12


Stat. § 812.014(1).2 And there is no clearly established law that indicates

that a bicycle theft sting, like the one used by these officers, is a violation of

constitutional rights. Both Vidler and Capraun are entitled to qualified

immunity for Jackson’s false arrest claims.

                                                B.

       Jackson also contends that Capraun violated his Fourteenth Amendment

rights by showing a deliberate indifference to his medical needs. 3 According to

Jackson’s complaint, he was suffering from acute back pain, which had been

caused by another officer tackling him off of the bike to arrest him. He told

Capraun that he needed medical care for his acute back pain, but Capraun said that

Jackson would have to wait until he was through with his report. Twice while

Capraun was preparing the report, he stopped to assist in other arrests involving the

bicycle sting operation. As part of assisting in the arrests, Capraun sped down

bumpy dirt roads with Jackson riding in the back seat of the patrol car,

exacerbating Jackson’s back injury. Capraun eventually took Jackson to the

Orange County Booking and Release Center, where he was seen by medical staff

and treated for his injuries upon arrival.

       2
        We also note that under Florida law, “[i]t is unlawful for any person who finds any lost
or abandoned property to appropriate the same to his or her own use.” F.S.A. § 705.102(3).
       3
         Although the district court found that Jackson did not allege a Fourteenth Amendment
claim against Capraun, we will assume, given Jackson’s pro se status, that he did, in fact, assert
such a claim in his third amended complaint, given that he alleged that Capraun made him wait
to get medical attention even though he repeatedly told Capraun how much pain he was in.
                                                 5
              Case: 12-13297    Date Filed: 08/15/2013    Page: 6 of 12


      To prevail on a claim of deliberate indifference to serious medical need, a

plaintiff must show: “(1) a serious medical need; (2) the defendant’s deliberate

indifference to that need; and (3) causation between that indifference and the

plaintiff’s injury.” Youmans v. Gagnon, 626 F.3d 557, 563 (11th Cir. 2010)

(alterations and quotation marks omitted). “A serious medical need is one that has

been diagnosed by a physician as mandating treatment or one that is so obvious

that even a lay person would easily recognize the necessity for a doctor’s

attention.” Id. at 564 (quotation marks omitted). Although Jackson alleges that he

told Capraun about his back pain, he does not allege that his pain had been

diagnosed as mandating treatment and or that it would have been obvious to a

layperson that he needed treatment, so he has not sufficiently alleged a “serious

medical need.” See id. at 561 (concluding that the plaintiff had not established

serious medical need when he had “several cuts and abrasions on his head, face,

shoulder, elbow, and hand” and appeared to be bleeding slightly).

      And even if we assume that Jackson’s back pain did constitute a “serious

medical need,” Capraun’s actions, as alleged in Jackson’s compliant, do not rise to

the level of a deliberate indifference. “To prove ‘deliberate indifference’ to a

serious medical need, a plaintiff must show (1) subjective knowledge of a risk of

serious harm; (2) disregard of that risk; (3) by conduct that is more than gross

negligence.” Id. at 564 (alterations and quotation marks omitted). Jackson alleged


                                          6
              Case: 12-13297      Date Filed: 08/15/2013    Page: 7 of 12


that Capraun delayed his treatment long enough for Capraun to fill out the arrest

report and to help in the arrest of two other people. That kind of delay does not

demonstrate that Capraun disregarded the risk to Jackson “by conduct that is more

than gross negligence.” See id. at 566 (concluding that the booking officer did not

violate the plaintiff’s constitutional rights when he spent three hours interviewing

and booking the plaintiff before getting him treatment for visible cuts and bruises

caused by the arresting officers).

                                           C.

      Jackson also contends that Kevin Beary, who was the sheriff at the time

Jackson was arrested, violated his constitutional rights under a respondeat superior

theory of liability and because he designed the bike sting operation.

      “It is well established in this Circuit that supervisory officials are not liable

under § 1983 for the unconstitutional acts of their subordinates on the basis of

respondeat superior or vicarious liability. ” Cottone v. Jenne, 326 F.3d 1352, 1360

(11th Cir. 2003). But a supervisor may be liable under § 1983 when his “custom

or policy . . . result[s] in deliberate indifference to constitutional rights.” Rivas v.

Freeman, 940 F.2d 1491, 1495 (11th Cir. 1991). Because Jackson failed to allege

sufficient facts to show that the officers’ actions in executing the bike theft sting

violated his constitutional rights, he failed to show that any such custom or policy

instituted by Beary in connection with the sting operation resulted in a deliberate


                                            7
              Case: 12-13297     Date Filed: 08/15/2013    Page: 8 of 12


indifference to his constitutional rights. The district court did not err in granting

Vidler, Capraun, and Beary’s motions to dismiss based on qualified immunity.

                                          II.

      The district court dismissed sua sponte Jackson’s allegations against the

officer who participated in the arrest with Capraun and Vidler because Jackson

failed to serve him. “[W]e review for abuse of discretion a court's dismissal

without prejudice of a plaintiff's complaint for failure to timely serve a defendant

under Rule 4(m).” Rance v. Rocksolid Granit USA, Inc., 583 F.3d 1284, 1286

(11th Cir. 2009). A district court’s decision will not be disturbed on abuse of

discretion review if it falls within a range of permissible choices and is not

influenced by a mistake of law. Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir.

2006).

      Jackson did not know the name of this officer but alleged that “Officer Doe”

was the officer who physically took him into custody, and, in doing so, used

excessive force. Jackson alleged that Officer Doe pushed him backwards off the

bicycle, causing him to fall on the ground and injure his back. Doe then dove on

top of him, even though Jackson asserts that he never resisted or attempted to

evade arrest. The court dismissed this claim because Jackson failed to identify and

then serve the officer within the time limit set by the court.

      Under Federal Rule of Civil Procedure 4(m),


                                           8
              Case: 12-13297     Date Filed: 08/15/2013    Page: 9 of 12


      If a defendant is not served within 120 days after the complaint is
      filed, the court–on motion or on its own after notice to the plaintiff–
      must dismiss the action without prejudice against that defendant or
      order that service be made within a specified time. But if the plaintiff
      shows good cause for the failure, the court must extend the time for
      service for an appropriate period.

“Good cause exists only when some outside factor, such as reliance on faulty

advice, rather than inadvertence or negligence, prevented service.” Lepone-

Dempsey v. Carroll County Com’rs, 476 F.3d 1277, 1281 (11th Cir. 2007)

(quotation marks and alterations omitted).

      Jackson argues that he had good cause for the failure to serve the officer

because he could not identify Doe. The district court gave Jackson 45 additional

days to successfully effect service on Doe and warned Jackson that a failure to

timely complete service would result in a dismissal of the action without further

notice. To facilitate service, the court also provided Jackson with the requisite

forms, as well as a list of instructions for their completion. Because the district

court instructed Jackson on the proper procedure for identifying and serving Doe,

extended his filing deadlines, and warned him that a failure to comply would result

in dismissal, and Jackson still failed to identify and serve Doe, the court acted

within its discretion by dismissing his claim without prejudice for failure to serve

under Rule 4(m).

                                          III.



                                           9
               Case: 12-13297       Date Filed: 08/15/2013      Page: 10 of 12


       After Jackson’s arrest, he was charged with grand theft and possession of

drug paraphernalia4 and prosecuted by Antonio Tapia, the assistant state attorney.

Jackson brought a claim against Tapia for malicious prosecution, and the district

court dismissed that claim based on prosecutorial immunity. “Prosecutors

performing ‘prosecutorial functions’ receive absolute immunity and are therefore

not subject to suit under 42 U.S.C § 1983.” Long v. Satz, 181 F.3d 1275, 1278

(11th Cir. 1999). If a defendant asserts prosecutorial immunity in a Rule 12(b)(6)

motion, “we ask if the allegations of the complaint disclose activities protected by

absolute immunity.” Id. at 1279. If the answer is yes, the defendant is immune

from suit. Id. “Prosecutorial immunity applies . . . to the prosecutor’s actions in

initiating a prosecution and presenting the State’s case.” Hart v. Hodges, 587 F.3d

1288, 1295 (11th Cir. 2009).

       Jackson’s third amended complaint alleged that Tapia initiated the

prosecution against him with malicious intent, which Tapia displayed by calling

Jackson a “crack head” in an email to Jackson’s criminal defense attorney. Tapia

is entitled to absolute immunity for initiating the prosecution even if he did it with

malicious intent. See Hart, 587 F.3d at 1295 (“A prosecutor is immune for

malicious prosecution.”). The district court did not err in dismissing Jackson’s

claim against Tapia based on prosecutorial immunity.

       4
        The grand theft charges were later dismissed and Tapia entered a nolle prosequi on the
drug paraphernalia charge.
                                              10
             Case: 12-13297     Date Filed: 08/15/2013    Page: 11 of 12


                                          IV.

      Finally, Jackson argues that the court erred in sua sponte dismissing his

claim against Orange County under 28 U.S.C. § 1915(e)(2) for failure to state a

claim upon which relief can be granted. We review that dismissal de novo,

viewing the allegations in the complaint as true. Hughes v. Lott, 350 F.3d 1157,

1159–60 (11th Cir. 2003).

      Jackson alleged that since 1981, he had been arrested five times by the

Orange County Sheriff’s Department. He asserted that he has also witnessed the

county deputy sheriffs entrapping citizens numerous times using illegal sting

operations. He contends that the illegality of those operations and the policies

supporting them was so obvious that the County had at least constructive

knowledge of the widespread abuse but failed to take any remedial steps to stop it.

      Under Florida law, counties are not protected from suit by sovereign

immunity. Abusaid v. Hillsborough Cty Bd. of County Comm’rs, 405 F.3d 1298,

1314 (11th Cir. 2005). However, “[w]hen an officer is sued under Section 1983 in

his or her official capacity, the suit is simply another way of pleading an action

against an entity of which an officer is an agent.” Id. at 1302 n.3. In this case, that

means that Jackson’s suit against Beary was essentially another way of pleading an

action against Orange County. As we have discussed, Jackson’s complaint against

Beary was properly dismissed; his complaint against Orange County was properly


                                          11
             Case: 12-13297    Date Filed: 08/15/2013   Page: 12 of 12


dismissed for the same reasons. To the extent that Jackson alleges claims against

Orange County that he did not allege against Beary, they are based on allegations

that are too vague to state a claim upon which relief may be granted.

      AFFIRMED.




                                         12
