           Case: 13-11854   Date Filed: 05/23/2014   Page: 1 of 9


                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-11854
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:11-cv-23754-PAS



LUCIUS WORDLEY,

                                              Plaintiff - Appellant,

versus

OFFICER PABLO SAN MIGUEL,
Badge #8039-43,

                                              Defendant - Appellee.

                      ________________________

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

                             (May 23, 2014)

Before WILSON, JORDAN and ANDERSON, Circuit Judges.

PER CURIAM:
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       Lucius Wordley, a state prisoner proceeding pro se, appeals the district

court’s dismissal, on grounds of qualified immunity, of his 42 U.S.C. § 1983 suit

against Metro-Dade Police Officer Pablo San Miguel. Mr. Wordley alleged in his

complaint that Officer San Miguel used excessive force against him during an

arrest, resulting in his broken finger. We affirm.

                                               I. 1

       According to Mr. Wordley, on the afternoon of Friday, April 8, 2011, he and

his minor nephew got into a verbal argument at the residence Mr. Wordley shared

with his mother. This argument turned into a physical altercation, prompting Mr.

Wordley to leave the home to avoid any further incidents with his nephew. Mr.

Wordley returned to his residence that same evening around midnight. After he

entered the house, his security alarm company called twice for security checks and

he told them that everything was fine.

       Shortly thereafter, Mr. Wordley saw Officer San Miguel—who had been

dispatched to the residence—come around the side of the house, pointing a gun at

him. Using several expletives, Officer San Miguel ordered Mr. Wordley on the

ground. Mr. Wordley complied with Officer San Miguel’s order and told him “that

[he] was down and [he] was not moving.” See D.E. 1 at 9. Officer San Miguel then


1
  Unlike the district court, we do not consider the events described in the police reports attached
to Officer San Miguel’s motion to dismiss. Given what Mr. Wordley alleged, we cannot say that
the events referenced in the reports—even if central to Mr. Wordley’s claim—are undisputed.
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placed his knee on the middle of Mr. Wordley’s back and grabbed his left hand and

put it behind his back. Officer San Miguel then reached for Mr. Wordley’s right

hand, but was obstructed by the leg of an adjacent table. Despite Mr. Wordley’s

pleadings for him to stop, Officer San Miguel continued to twist Mr. Wordley’s

left hand while trying to reach his right hand. Mr. Wordley felt “a sharp pain and

heard [his] finger pop” as Officer San Miguel placed the handcuffs on both hands.

See id.

      Mr. Wordley was taken to the police station, during which time he

repeatedly requested medical assistance. While at the station, Mr. Wordley asked

Officer San Miguel why he broke his finger, to which Officer San Miguel

responded by telling him to “shut up” and “plac[ing] his hand around [Mr.

Wordley’s] neck in a choking position.” See id. at 10.2 Eventually, another officer

at the station called 9-1-1. The responding paramedics stated that the finger was

likely broken, a diagnosis which was confirmed later at the hospital, where Mr.

Wordley was also informed that surgery would be necessary to repair the broken

finger.

      Declining to adopt the magistrate judge’s report, the district court granted

Officer San Miguel’s motion to dismiss with prejudice, concluding that Mr.

Wordley did not meet his burden of establishing that qualified immunity should

2
 Mr. Wordley did not make any claims in his complaint regarding the alleged “choking” by
Officer San Miguel.
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not apply. Specifically, the district court ruled that Mr. Wordley did not “establish

that case law, at the time of the incident, clearly established that [Officer San

Miguel] was using excessive force,” nor did his complaint “fall within the narrow

exception when there is an absence of case law.” See D.E. 23 at 5-6.

                                             II.

       We review de novo a district court’s grant of a motion to dismiss under Rule

12(b)(6), “accepting the allegations in the complaint as true and construing them in

the light most favorable to the plaintiff.” Leib v. Hillsborough Cnty. Pub. Transp.

Comm’n, 558 F.3d 1301, 1305 (11th Cir. 2009). The facts as pleaded must “state a

claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal citations omitted).3

       Qualified immunity is “an immunity from suit, rather than merely a defense

to liability.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (internal emphasis

omitted). It “protects government officials performing discretionary functions from

suits in their individual capacities 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) (citation

omitted). To be entitled to qualified immunity, a defendant must first establish that

he was acting within the scope of his discretionary authority, meaning the

3
 As Mr. Wordley is proceeding pro se, his pleadings are liberally construed. See Tannenbaum v.
United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
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government employee must have been performing a legitimate job-related

function, or pursuing a job-related goal, through means that were within the

official’s power to utilize. See Mathews v. Crosby, 480 F.3d 1265, 1269 (11th Cir.

2007); Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir.

2004).

      Once the defendant has established that he was acting within his

discretionary authority, “the burden shifts to the plaintiff to show that qualified

immunity is not appropriate,” Mathews, 480 F.3d at 1269, by showing: “(1) the

defendant violated a constitutional right, and (2) this right was clearly established

at the time of the alleged violation.” Holloman, 370 F.3d at 1264. We may

consider these two prongs of the qualified immunity analysis in any order. See

Pearson v. Callahan, 555 U.S. 223, 236 (2009).

      From the record, it is clear that Officer San Miguel was acting within his

discretionary authority in arresting Mr. Wordley after being dispatched to his

home, and Mr. Wordley does not claim that Officer San Miguel lacked probable

cause for the arrest. The burden, therefore, shifts to Mr. Wordley to show that

Officer San Miguel violated a clearly established right by injuring his finger while

twisting his hand to secure handcuffs during the arrest.

      Even if Officer San Miguel’s actions did constitute excessive force in

violation of the Fourth Amendment, Mr. Wordley has not shown that the rights


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allegedly deprived were clearly established at the time of the incident. In order to

demonstrate that a right has been clearly established, a plaintiff may: (1) show that

a materially similar case has already been decided; (2) identify a “broader, clearly

established principle [that] should control the novel facts [of the] situation”; or (3)

argue that the conduct at issue so obviously violated the constitution that existing

case law is unnecessary. See Loftus v. Clark-Moore, 690 F.3d 1200, 1204-05 (11th

Cir. 2012). Mr. Wordley has not presented a “materially similar” case which would

put Officer San Miguel on notice that his conduct was unlawful. Understanding the

need to balance the potential intrusion on an individual’s rights against

countervailing governmental interests, “Fourth Amendment jurisprudence has long

recognized that the 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.” Graham v. Connor, 490 U.S. 386, 396 (1989). “We do not use hindsight to

judge the acts of police officers,” Rodriguez v. Farrell, 280 F.3d 1341, 1351 (11th

Cir. 2002), and “[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,

490 U.S. at 396 (internal citation omitted).

      In Rodriguez, the officer’s conduct during an arrest aggravated the plaintiff’s

pre-existing injury, resulting in more than twenty-five subsequent surgeries and the

eventual amputation of the plaintiff’s arm. We held that, despite the gravity of this


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injury, the force used by the officer did not rise to the level of a constitutional

violation because he had used an otherwise “common non-excessive handcuffing

technique,” and had no knowledge of the plaintiff’s pre-existing condition.

Rodriguez, 280 F.3d at 1351. Similarly, here, we carefully consider the

circumstances surrounding the arrest and do not rely solely on an ex post

assessment of the resulting injury. Although unfortunate, Mr. Wordley’s injury

occurred while Officer San Miguel attempted to secure handcuffs during the

normal course of an arrest, and therefore, Officer San Miguel was not put on

notice—particularly in light of Rodriguez—that his actions were potentially

unlawful.

      In support of his claim, Mr. Wordley cites to Smith v. Mattox, 127 F.3d 1416

(11th Cir. 1997), a case which helps define the less-than-clear line between

excessive and acceptable force. In Smith, the officer placed his knee on the

plaintiff’s back and pulled his left arm behind his back to secure handcuffs during

an arrest. This put the plaintiff’s forearm into a position that caused him

discomfort. When the plaintiff complained, the officer then, “with a grunt and a

blow,” broke the plaintiff’s arm. Id. at 1418. We found that this was a “very close

case” and the officer’s conduct “barely” reached beyond the “hazy border between

excessive and acceptable force.” Id. at 1419. Specifically, “the grunt and the blow

that [the plaintiff] assert[ed] that he heard and felt while [the officer] was on [the


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plaintiff’s] back, coupled with the severity of [the plaintiff’s] injury, push[ed] this

case over the line.” Id. Although there are some similarities between the facts

alleged by Mr. Wordley and the events in Smith, that case cannot be considered

fair notice to Officer San Miguel. Here, Officer San Miguel’s twisting of Mr.

Wordley’s hand while applying handcuffs during arrest lacks the gratuitous,

separate blow that pushed—just barely—the officer’s actions in Smith over the line

between permissible and prohibited force. See id. Given Rodriguez and Smith, even

if Officer San Miguel’s actions constituted excessive force, the potential

constitutional violation at issue was not clearly established by existing case law at

the time of Mr. Wordley’s arrest.

      Nor has Mr. Wordley shown that, even in the absence of case law, Officer

San Miguel’s conduct “lies to so obviously at the very core of what the Fourth

Amendment prohibits that the unlawfulness of the conduct was readily apparent to

[him].” Priester, 208 F.3d at 926. This standard, which “entails determining

whether ‘application of the [excessive force] standard would inevitably lead every

reasonable officer in [the Defendants’] position to conclude the force was

unlawful,’” id. at 926-27 (alterations in original), has not been met here.

                                         III.

      We affirm the district court’s order of dismissal based on qualified

immunity.


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AFFIRMED.




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