                                                       [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________

                            No. 11-13918
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:09-cv-02681-TWT

EKATERINA SEVOSTIYANOVA,



                                                    Plaintiff-Appellant,

                                versus

COBB COUNTY OF GEORGIA,
OFFICER A. C. AYERS,
JOHN DOE I,
RICHARD CUNNINGHAM,
JOHN DOE III, et al,

                                                    Defendants-Appellees.

                     ________________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                             (July 11, 2012)

Before EDMONDSON, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:

      In this § 1983 action, pro se plaintiff-appellant Ekaterina Sevostiyanova

appeals the district court’s grant of summary judgment in favor of defendants

Officer Christopher Allen Ayers, Deputy Sheriff David Clark Hilsman, and

Deputy Sheriff Richard Cunningham (collectively “the individual defendants”),

and Cobb County, Georgia, as well as the denial of her cross-motion for summary

judgment. After a thorough review of the record, we affirm in part and vacate and

remand in part.

      I. Background

      On September 16, 2009, Sevostiyanova filed a § 1983 action against Cobb

County and the individual defendants, alleging that the defendants violated her

constitutional rights when she was arrested for driving without insurance and hit

and run.

      According to Sevostiyanova, she was pulling out of a parking lot when she

slightly touched some loose lumber protruding from a truck also parked in the lot.

There was no damage to the truck, the lumber, or the rental car she was driving.

Nevertheless, about two months later, Cobb County police contacted her about a

hit-and-run accident; she denied any involvement. She further alleged that a few

days later, Cobb County officers broke into her home, attacked her, pointed a gun

                                         2
in her face, and arrested her for having no insurance. Based on these facts,

Sevostiyanova alleged constitutional violations for the use of excessive force,

unlawful seizure, malicious prosecution, and violations of due process, along with

state-law claims not at issue in this appeal.

       Both sides filed motions for summary judgment. The district court granted

summary judgment in favor of Cobb County and the individual defendants and

denied Sevostiyanova’s cross-motion for summary judgment. The district court

found there was probable cause, or in the alternative arguable probable cause for

Sevostiyanova’s arrest, and that the amount of force used during the arrest was de

minimus. The court also found that the claims against Cobb County failed because

Sevostiyanova did not offer adequate evidence of the county’s training policies.

       II. Sevostiyanova’s Appeal1

       We review the district court’s summary judgment rulings de novo, including

its conclusions regarding qualified immunity. See Pourmoghani-Esfahani v. Gee,

625 F.3d 1313, 1315 (11th Cir. 2010); Holmes v. Kucynda, 321 F.3d 1069, 1077

(11th Cir. 2003). Summary judgment is appropriate if the movant demonstrates

there is no genuine dispute as to any material fact, and that it is entitled to


       1
          Sevostiyanova does not challenge the dismissal of her state-law claims or the claims
against John Doe III. Therefore, she has abandoned these claims and we do not address them.
Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).

                                                3
judgment as a matter of law. Fed.R.Civ.P. 56(a). We must accept the

non-movant’s version of the facts, and draw all justifiable inferences in that

party’s favor. Pourmoghani-Esfahani, 625 F.3d at 1315.

             A. The Individual Defendants

      Qualified immunity completely protects government officials sued in their

individual capacities so long as their conduct does not violate clearly established

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

Hoyt v. Cooks, 672 F.3d 972, 977 (11th Cir.), petition for cert. filed (Apr. 27,

2012) (No. 11-1363). To be entitled to qualified immunity, an official must first

establish that he was performing discretionary duties. See id. If so, he is entitled

to qualified immunity unless the plaintiff shows that there was a violation of the

constitution and that the illegality of the defendant-official’s conduct was clearly

established at the time of the incident. See Hoyt, 672 F.3d at 977.

      A police officer acts within his discretionary authority when he effects an

arrest. See Wood v. Kesler, 323 F.3d 872, 877 (11th Cir. 2003). Thus, the only

question before us is whether the laws were clearly established at the time of the

arrest. Sevostiyanova alleged that the defendants violated her constitutional rights

by: maliciously prosecuting her, falsely imprisoning her, illegally arresting her in

her home, and using excessive force during the arrest. We address each issue in

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turn.

              1.      Malicious Prosecution

        To prove a § 1983 malicious prosecution claim, a plaintiff must show the

following: “(1) a criminal prosecution instituted or continued by the present

defendant; (2) with malice and without probable cause; (3) that terminated in the

plaintiff accused’s favor; and (4) caused damage to the plaintiff accused.” Wood,

323 F.3d at 881-82.

        Ayers stated in his deposition that he investigated the alleged hit and run,

found that Sevostiyanova had rented the car she was driving at the time of the

accident, and inquired about her insurance coverage. Because the rental

agreement indicated that Sevostiyanova would maintain her own insurance

coverage, Ayers called GEICO, the insurer listed on the agreement. The GEICO

representative initially stated that Sevostiyanova had coverage, but then corrected

himself and stated that she was not covered on the date of the accident. Ayers

included this information in an arrest warrant application. Based on the affidavit,

a magistrate judge issued a warrant for the hit and run and for driving without

proof of insurance.2 The state court later nolle prossed the insurance-related


        2
          We note that, although Sevostiyanova was convicted of various charges related to the
hit-and-run incidents, she was not convicted of the insurance-related charges.


                                               5
charges when it confirmed that Sevostiyanova in fact had insurance at the time of

the accident.

      Sevostiyanova contends that Ayers called GEICO using an alias, learned

she had insurance, and lied on the warrant application by informing the magistrate

judge that she did not have insurance. In support of her allegations, she submitted

a declaration from a GEICO representative that he informed the officer who called

that she had insurance. She also submitted her own statement.

      The district court did not address Sevostiyanova’s malicious prosecution

claim, and the factual findings the district court made do not enable appellate

review on this issue. Although we may affirm on any ground supported in the

record, we do not make factual findings in the first instance.

      Sevostiyanova indicates in her appellate brief that she does not challenge

the validity of the warrant. But in light of Sevostiyanova’s pro se status, we

conclude that her failure to challenge the validity of the arrest warrant does not

invalidate her malicious prosecution claim. Sevostiyanova specifically alleged

and provided evidence that Ayers proffered false information of her insured status

to obtain the warrant; thus, she has sufficiently preserved her malicious

prosecution claim. Accordingly, we vacate and remand on this issue.

                2.   False Imprisonment

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       A § 1983 claim for false imprisonment requires a showing of the common

law elements of false imprisonment, as well as a Fourteenth Amendment due

process violation. Campbell v. Johnson, 586 F.3d 835, 840 (11th Cir. 2009). At

common law, false imprisonment required an intent to confine, an act resulting in

confinement, and the victim’s awareness of the confinement. Id. A due process

violation ensues from the continued detention of a person after it was, or should

have been, known that the detainee was entitled to release. See id.

       Georgia law enforcement officers may effectuate an arrest under a warrant

regardless of whether the offenses were committed in the presence of law

enforcement. See O.C.G.A. § 17-4-20(a). They also may, but are not required to,

arrest a person by citation for a traffic offense. Id. § 17-4-23(a); Edwards v. State,

480 S.E.2d 246, 249 (Ga. Ct. App. 1997).

       Even though we conclude that Sevostiyanova may challenge the arrest

warrant for purposes of her malicious prosecution claim, allowing her to do so

does not change our analysis of her other claims.3 Here, Hilsman and Cunningham

arrested Sevostiyanova for hit and run, as permitted by statute, pursuant to a

       3
          Moreover, even if the district court were to conclude on remand that Ayers lied in the
warrant application, this would only affect the insurance-related charges. The hit-and-run
charges were supported by probable cause and the officers were entitled to qualified immunity
with respect to the arrest. Additionally, because Sevostiyanova’s attempts to get her conviction
for hit and run set aside have been unsuccessful, any claims challenging the validity of the arrest
would be barred by Heck v. Humphrey, 512 U.S. 77 (1994).

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facially valid warrant issued by a magistrate judge. See Messerschmidt v.

Millender, 132 S.Ct. 1235, 1245 (2012) (“In the ordinary case, an officer cannot

be expected to question the magistrate’s probable-cause determination because it

is the magistrate’s responsibility to determine whether the officer’s allegations

establish probable cause and, if so, to issue a warrant comporting in form with the

requirements of the Fourth Amendment.”) (citation and internal quotation marks

omitted)). No evidence suggests that they continued to detain Sevostiyanova after

they should have known she was entitled to be released. Thus, there is no merit to

her claims of false imprisonment.

             3.    In-Home Arrest

      For Fourth Amendment purposes, an arrest warrant founded upon probable

cause implicitly carries with it the limited authority to enter a dwelling in which

the suspect lives when there is reason to believe the suspect is within. Payton v.

New York, 445 U.S. 573, 603 (1980). For law enforcement officials to enter a

residence in order to execute an arrest warrant for the resident, the facts and

circumstances within the officers’ knowledge, when viewed in totality, must

warrant a reasonable belief that the location to be searched is the suspect’s

dwelling, and that the suspect is there at the time of entry. United States v.

Magluta, 44 F.3d 1530, 1535 (11th Cir. 1995). Officers may assume a person is at

                                          8
home during certain times of the day. United States v. Bervaldi, 226 F.3d 126,

1267 (11th Cir. 2000).

      Here, the district court properly granted summary judgment to the

defendants on Sevostiyanova’s claims regarding her in-home arrest. The facially

valid arrest warrant gave Hilsman and Cunningham limited authority to enter

Sevostiyanova’s condominium, and they had reason to believe that she was inside

her condominium when they entered. The officers arrived at Sevostiyanova’s

house early in the morning, a time when, absent other evidence, the officers would

expect Sevostiyanova to be home, and they observed someone in the condominium

matching Sevostiyanova’s description. Under these facts, Sevostiyanova has not

shown that her arrest violated her constitutional rights.

             4.     Excessive Force

      A § 1983 claim that an officer used excessive force during the course of an

arrest falls under the Fourth Amendment proscription against unreasonable

seizures. Graham v. Connor, 490 U.S. 386, 393-95 (1989). The right to make an

arrest carries with it the right to use some degree of physical force or threat

thereof, and the typical arrest involves some force. Lee v. Ferraro, 284 F.3d 1188,

1200 (11th Cir. 2002). De minimus force does not constitute excessive force.

Nolin v. Isbell, 207 F.3d 1253, 1255-58 (11th Cir. 2000).

                                           9
      In determining whether an officer used excessive force during an arrest, we

ask whether a reasonable officer would believe that this level of force was

necessary in the situation at hand. Lee, 284 F.3d at 1197. This is an objective

inquiry that excludes the officer’s intentions. Id. at 1198 n.7. We must evaluate a

number of factors, including the severity of the crime at issue, whether the suspect

poses an immediate threat to the safety of the officers or others, and whether the

suspect is actively resisting arrest or attempting to evade arrest by flight. Id. at

1197-98. In determining whether an officer’s use of force was objectively

reasonable so as to qualify him for qualified immunity, we also consider the need

for the application of force, the relationship between that need and the amount of

force used, the extent of the injury inflicted, and whether the force was applied in

good faith or maliciously and sadistically. Slicker v. Jackson, 215 F.3d 1225,

1232-33 (11th Cir. 2000). Ordinary, reasonable force does not become excessive

where it aggravates, however severely, a pre-existing condition the extent of

which was unknown to the officer at the time. Rodriguez v. Farrell, 280 F.3d

1341, 1352-53 (11th Cir. 2002).

      Here, Sevostiyanova failed to provide sufficient evidence tending to show

that Hilsman and Cunningham used any more than de minimus force. Both

officers testified that they take whatever precautions necessary when they arrest

                                           10
someone because they often do not know how many people are in a residence or if

any of the occupants are armed. In this case, when the officers knocked on

Sevostiyanova’s door, she did not answer, but the officers saw someone in the

apartment run and hide. Thus, the offices entered the apartment and searched for

Sevostiyanova with their weapons drawn. Once they located her in the bathroom

closet, they holstered their firearms after they saw her hands and determined that

she did not have access to a weapon. Because Sevostiyanova refused to comply

with the officers, they had to forcibly pull her arms behind her and place her up

against the wall. This de minimus use of force does not violate the Fourth

Amendment, and the officers were entitled to summary judgment on this claim.

             B.      Cobb County

      Municipalities can be held liable under § 1983. See Monell v. Dep’t of Soc.

Servs. of City of New York, 436 U.S. 658, 690 (1978). A plaintiff, however, may

not hold a county liable under the theory of respondeat superior, and the fact that

the plaintiff suffered a deprivation of federal rights at the hands of a municipal

employee is insufficient to established a municipality’s liability. See McDowell v.

Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). Rather, the plaintiff must prove

that: (1) her constitutional rights were violated; (2) the municipality had a custom

or policy that constituted deliberate indifference to that constitutional right; and

                                          11
(3) the policy or custom at issue caused the constitutional violation. Id. In order

to demonstrate a policy or custom, it is generally necessary to show a persistent

and wide-spread practice, and random acts or isolated incidents are insufficient.

McDowell, 392 F.3d at 1290.

      The district court properly granted the defendants summary judgment on

Sevostiyanova’s claim against Cobb County because she did not present any

evidence that Cobb County policies or customs caused constitutional violations.

      III. Conclusion

      After review, we conclude that the district court properly granted summary

judgment in favor of the individual defendants and Cobb County on

Sevostiyanova’s claims of unlawful arrest, excessive force, and failure to train.

Accordingly, we affirm the district court on these issues. We vacate and remand,

however, on Sevostiyanova’s malicious prosecution claim for further proceedings

consistent with this opinion.

      AFFIRMED in part, VACATED and REMANDED in part.




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