                                                                       [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT                           FILED
                                                                   U.S. COURT OF APPEALS
                        ------------------------------------------- ELEVENTH CIRCUIT
                                                                     NOVEMBER 28, 2006
                                     No. 06-12975
                                                                      THOMAS K. KAHN
                               Non-Argument Calendar
                                                                           CLERK
                        --------------------------------------------

                    D.C. Docket No. 04-01227-CV-T-26-EAJ

GARY WHITE, individually and as personal
representative of the estate of Miles White,
JAMIE WHITE,
CAMERON WHITE,
ADDISON WHITE,

                                                         Plaintiffs-Appellants,

                                          versus

POLK COUNTY, a municipal corporation,
SCOTT LAWSON, in his individual capacity,
GARY HESTER, in his individual capacity,
SAMUEL TAYLOR, Major, in his individual capacity,
LAWRENCE CROW, Sheriff, in his individual capacity, et al.,

                                                         Defendants-Appellees.

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                   Appeal from the United States District Court
                          for the Middle District of Florida
              ----------------------------------------------------------------
                                  (November 28, 2006)

Before EDMONDSON, Chief Judge, DUBINA and HULL, Circuit Judges.
PER CURIAM:

          Plaintiffs, who are family members of Miles White, deceased, appeal the

district court’s grant of summary judgment to Defendants -- Polk County, Florida

and members of the Polk County Sheriff’s Department including Officer Scott

Lawson -- on their 42 U.S.C. § 1983 suit.1 No reversible error has been shown; we

affirm.

          This case is about an automobile accident that occurred in the early morning

hours of 31 May 2002. White, who was 16 years old, was a passenger in a car

driven by 18-year-old Adam Jacoby. During a patrol around 2:30 a.m., Officer

Lawson, who was driving an unmarked patrol vehicle, began to follow Jacoby.2

Officer Lawson did not activate his car’s siren or other emergency equipment as

he followed Jacoby’s car for over 15 miles. During Officer Lawson’s surveillance

of Jacoby’s car, both vehicles traveled at speeds exceeding 100 m.p.h. and

disobeyed traffic laws. At some point during this chase, Officer Lawson learned

that Jacoby’s car was not stolen. While traveling over 100 m.p.h., Jacoby’s car


   1
     Before Defendants filed their motion for summary judgment in this case, Officer Lawson had
filed pro se a motion for summary judgment, which the district court denied because the case was
not yet ripe for disposition by summary judgment. In its order granting summary judgment to
Defendants, the district court acknowledged that it previously had denied Officer Lawson’s summary
judgment motion but explained that Officer Lawson “should obtain the benefits of this ruling”
granting summary judgment to Defendants because no constitutional violation was committed.
   2
       Officer Lawson later stated in an incident report that Jacoby had been speeding.

                                                   2
failed to navigate a curve in the road; and his vehicle crashed, killing White. After

the crash, many persons complained to Polk County officials that Officer Lawson

had performed unnecessary physical searches of them at the time of their arrest.3

          On appeal Plaintiffs argue that Lawson’s surveillance of Jacoby and White

shocks the conscience and therefore violates the Fourteenth Amendment’s

guarantee of substantive due process. They contend that Officer Lawson intended

to harm White based on the circumstances of the crash and Officer Lawson’s

refusal to answer questions after the crash about his intentions in chasing Jacoby’s

car.4

          “We review a district court’s grant of summary judgment de novo, viewing

the facts -- as supported by the evidence in the record -- and reasonable inferences

from those facts in the light most favorable to the nonmoving party.” Young v.

City of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004). Summary judgment is

proper where no genuine issue of material fact exists. Id.



      3
     The record contains evidence that Officer Lawson performed an unnecessary strip search of a
fifteen-year-old male two weeks before the crash.
  4
    We note that Plaintiffs do not challenge the district court’s determination that pursuit of Jacoby’s
car did not result in an unlawful seizure under the Fourth Amendment; therefore, this claim is
abandoned. See United States v. Ford, 270 F.3d 1346, 1347 (11th Cir. 2001) (explaining that a party
abandons an issue when he fails to raise it in his initial brief on appeal). In addition, we
acknowledge that the district court declined to exercise supplemental jurisdiction over Plaintiffs’
state law claims against Polk County; so Plaintiffs might pursue these claims in state court.

                                                   3
      Title 42 U.S.C. § 1983 “provides a cause of action for constitutional

violations committed under color of state law.” Burton v. City of Belle Glade, 178

F.3d 1175, 1187-88 (11th Cir. 1999). To state a section 1983 claim, a plaintiff

must demonstrate that the defendant, acting under color of state law, deprived him

or her of a right secured by the Constitution or the laws of the United States. Am.

Mfrs. Mut. Ins. Co. v. Sullivan, 119 S.Ct. 977, 985 (1999). The first step in

evaluating a section 1983 claim is to “identify the exact contours of the underlying

right said to have been violated.” County of Sacramento v. Lewis, 118 S.Ct. 1708,

1714 n.5 (1998).

      The Supreme Court’s decision in Lewis involved a high-speed police

pursuit during which an officer chased a speeding motorcycle driver, resulting in

the death of the motorcycle’s passenger after the motorcycle tipped over and the

officer struck the passenger. Id. at 1712. In that case, the Supreme Court

explained that the critical factor in determining whether the officer violated the

Fourteenth Amendment’s guarantee of substantive due process was whether the

officer’s conduct shocked the conscience, which occurs when a plaintiff can show

that the officer had “a purpose to cause harm unrelated to the legitimate object of

arrest.” See id. at 1711-12; see also id. at 1720 (explaining that “high-speed

chases with no intent to harm suspects physically or to worsen their legal plight do

                                          4
not give rise to liability under the Fourteenth Amendment, redressible by an action

under [section] 1983”). Therefore, “when unforeseen circumstances demand an

officer’s instant judgment” -- in situations such as a high-speed chase -- a showing

that an officer’s recklessness caused plaintiff’s injury is insufficient to support a

substantive due process claim.5 See id. at 1720.

          Here, Plaintiffs have not presented evidence that Officer Lawson’s acts were

motivated by an intent to harm White; and we conclude that Officer Lawson’s

conduct does not rise to a level that shocks the conscience.6 See id. at 1721

(concluding that “[r]egardless whether [initiating a high-speed chase] offended the

reasonableness held up by tort law or the balance struck in law enforcement’s own

codes of sound practice, it does not shock the conscience, and [defendants] are not


      5
     Plaintiffs argue that Officer Lawson did not engage in “split second decision making” that
requires application of the shock-the-conscience standard; and they contend that we should consider
Officer Lawson’s conduct under a deliberate-indifference standard. But Plaintiffs have not directed
us to evidence that Officer Lawson had sufficient time to deliberate on his conduct before
undertaking pursuit of Jacoby’s vehicle. Instead the evidence presented indicates that this case
involved a high-speed chase governed by the shock-the-conscience standard.
  6
    We are not persuaded -- in the absence of even a scintilla of other evidence that Officer Lawson
intended to harm White -- by Plaintiffs’ assertion that, because Officer Lawson invoked his Fifth
Amendment privilege and did not answer a deposition question about whether he intended to harm
White and Jacoby, we should infer that Officer Lawson did intend such harm. See Avirgan v. Hull,
932 F.2d 1572, 1580 (11th Cir. 1991) (“Invocation of the fifth amendment privilege did not give rise
to any legally cognizable inferences sufficient to preclude entry of summary judgment. The negative
inference, if any, to be drawn from the assertion of the fifth amendment [by the moving party] does
not substitute for evidence needed to meet the [non-moving party’s] burden of production.”). And
we note that, in his pro se motion for summary judgment, Officer Lawson stated that he did not
intend to assault White and Jacoby or to worsen their legal plight.

                                                 5
called upon to answer for it under [section] 1983”); Vaughn v. Cox, 343 F.3d

1323, 1327, 1333 (11th Cir. 2003) (concluding that when a police officer fired

shots towards a vehicle being pursued, resulting in a bullet hitting the spine of one

of the vehicle’s passengers and instantly paralyzing him below the chest, summary

judgment to defendants was appropriate because plaintiff did not present evidence

that the officer’s acts were motivated by anything other than a desire to arrest the

vehicle’s occupants); Fagan v. City of Vineland, 22 F.3d 1296, 1299-1300, 1303,

1309 (3d Cir. 1994) (en banc) (concluding that a police pursuit -- during which a

police officer pursued a vehicle by speeding through a residential neighborhood

violating traffic laws, resulting in the death of some of the occupants of the

pursued vehicle -- did not shock the conscience).

      Because Officer Lawson’s conduct did not shock the conscience, the district

court’s grant of summary judgment to Defendants was not erroneous.

      AFFIRMED.




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