                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                     FILED
                        ________________________          U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                JULY 21, 2009
                               No. 09-10343
                                                             THOMAS K. KAHN
                           Non-Argument Calendar                   CLERK
                         ________________________

                   D.C. Docket No. 07-00284-CV-5-RS-MD

TERENCE C. EVERETT,

                                                       Plaintiff-Appellee,

                                    versus

JONATHAN P. SMITH,
MATT VICKERY,

                                                       Defendants-Appellants.

                         ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        ________________________
                                (July 21, 2009)

Before BIRCH, HULL and COX, Circuit Judges.

PER CURIAM:

      The district court denied the motion for summary judgment grounded upon

qualified immunity filed by the Defendants Jonathan P. Smith and Matt Vickery.
Smith and Vickery appeal. They contend: (1) that the district court erred in

concluding that a fact-finder could find, viewing the facts in the light most favorable

to the Plaintiff, that the excessive force used by Smith and Vickery in making the

arrest violated the Fourth Amendment; and (2) that the district court erred in

concluding that the Fourth Amendment right to be free from the use of such force was

clearly established. We address each issue in turn.

      The district court’s opinion recites the facts, viewing them in the light most

favorable to the Plaintiff.     (R.2-71.)   “In exercising our interlocutory review

jurisdiction in qualified immunity cases, we are not required to make our own

determination of the facts for summary judgment purposes; we have discretion to

accept the district court’s findings if they are adequate.” Cottrell v. Caldwell, 85 F.3d

1480, 1486 (11th Cir. 1996) (citation omitted). Here, we exercise our discretion to

accept the district court’s factual findings for the purposes of this appeal.

      Considering first the constitutional issue, the district court held that “believing

Plaintiff’s story, I find that the force of slamming Plaintiff to the ground after placing

him in a choke-hold and kicking him in the face while on the ground after he had

submitted to being handcuffed and was compliant was disproportionate to the need

for that force.” (R.2-71 at 9.) We find no error in this holding.




                                            2
       Turning now to the clearly-established prong of the qualified immunity

defense, we find no error in the district court’s conclusion that a reasonable officer

would know that under these circumstances the kind of force Smith and Vickery are

said to have used violated the Fourth Amendment. In Smith v. Mattox, 127 F.3d 1416

(11th Cir.1997), we held that allegations that an officer broke a non-resisting

arrestee’s arm while handcuffing him were sufficient to allege excessive force in

violation of the Fourth Amendment. Id. at 1419-20. After Smith, a reasonable officer

would know that, when handcuffing a non-resisting arrestee, using force sufficient

to cause the injuries described in the district court’s opinion (R.2-71 at 2-3) was a

violation of the Fourth Amendment.

       We note that the facts of this case are hotly disputed. Thus, the issue of

qualified immunity does not drop from the case, but must be revisited once the fact-

finder decides what the true facts are.

       AFFIRMED.1




       1
         Appellee’s motion for appellate attorney’s fees is transferred to the district court for a
determination of entitlement and reasonable attorney’s fees to be awarded in the event that Appellee
ultimately prevails in the action.

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