            Case: 17-14769   Date Filed: 09/04/2018   Page: 1 of 15


                                                       [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 17-14769
                          Non-Argument Calendar
                        ________________________

                     D.C. Docket No. 2:16-cv-14476-RLR



STEVEN KRAUS,

                                                            Plaintiff - Appellant,

                                    versus

MARTIN COUNTY SHERIFF'S OFFICE,
WILLIAM D. SNYDER,
Sheriff, Martin County Sheriff’s Office,
MICHAEL GARGAN,
DAVID SANSONE,

                                                        Defendants - Appellees.

                        ________________________

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

                             (September 4, 2018)
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Before MARTIN, JILL PRYOR, and NEWSOM, Circuit Judges.

PER CURIAM:

         Following his arrest for a DUI, Steven Kraus brought this action alleging (1)

excessive-force claims under 42 U.S.C. § 1983 against Martin County Deputy

Michael Gargan, Sergeant David Sansone, and Sheriff William Snyder, (2) state-

law battery claims against Sansone and Gargan, and (3) a claim for deliberate

indifference to serious medical needs under § 1983 against Snyder. The district

court granted summary judgment in favor of each defendant as to all claims,

concluding (1) that Sansone and Gargan were entitled to qualified immunity on the

excessive-force claims and statutory immunity under Florida Statute 768.29(9)(a)

on the state-law battery claims, and (2) that Snyder was entitled to summary

judgment because, as a matter of law, Kraus had not demonstrated deliberate

indifference. After careful review, we affirm. 1


                                               I

         Although according to Kraus, he had “been drinking and driving [his] whole

life,” 2 it wasn’t until 2012 that he was finally caught and arrested for DUI by

Florida Highway Patrol Trooper R.E. Weber. While in transport to the Martin

1
  We review de novo the district court’s ruling on the motions for summary judgment, construing
all facts and drawing all reasonable inferences in the light most favorable to Kraus. Perez v.
Suszczynski, 809 F.3d 1213, 1216 (11th Cir. 2016).
2
    See Dashcam Video at 28:10.

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County Jail for processing, Kraus repeatedly asked Weber to shoot him, telling

Weber just to say that he tried to run away. Once at the jail, Weber reported these

statements to Gargan and Sansone.


      During the booking process, Gargan removed Kraus’s handcuffs and asked

him to put his hands on the counter in front of him. Gargan then asked Kraus to

remove various personal items, while Sergeant Sansone watched nearby. Kraus

admits that he threw his belt and necklace on the counter during the process—

because, he says, he was angry that the officers had made derogatory comments

about his sexuality.


      The parties disagree about what happened next. Kraus asserts that the

officers instructed him to remove his shoes and that when he removed his hands

from the counter to comply they yelled at him to put his hands back on the counter.

He contends that he then turned calmly towards Gargan to respond to yet another

comment about his sexuality, at which point Gargan “grabbed [him] by [his left]

arm and the back of [his] neck, slammed [his] head down on the counter, placed …

both his legs behind [Kraus’s] legs, and held [him] there in a controlled position.”

According to Kraus, even though he was completely subdued by Gargan’s

maneuver, Sansone “took [his] right arm off the table, twisted it behind his back

and … lifted it straight over [Kraus’s] head in an unnatural manner before


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slamming [his arm] back down towards the table.” Kraus states that he “heard a

snap immediately and knew that his arm had been broken …”


      Unfortunately for Kraus, a video recording of the booking process supports

the officers’ contrary account. The footage shows Kraus take his hands from the

booking counter and turn toward Gargan. After this initial act of non-

compliance—which Kraus’s account omits—Gargan put his hand on Kraus’s back

and turned him toward the counter. Kraus then placed his hands on the booking

counter. The video then shows Kraus remove his shoes as instructed and thereafter

place his hands back on the counter for a few seconds. But he then removed his

hands again and turned to face Gargan, at which point the officers reacted.

Gargan grabbed Kraus’s left arm and maneuvered his upper body toward the

booking counter, while Sansone secured Kraus’s right arm behind his back in an

“arm bar.”


      Shortly thereafter, Kraus was given a breathalyzer test that showed his blood

alcohol level was .151-.156. He was then transported to Stuart Memorial Hospital

where it was determined that a bone in his right arm had been broken. The hospital

placed his arm in a sling.

      Kraus was then returned to the jail and placed in a cell. He was put on

suicide watch, and his sling was removed per Sheriff’s Standard Operating


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Procedure 6.04-3, which requires removal of all personal items of an arrestee on

suicide watch. He was released from jail several hours later and transported to the

Port St. Lucie Medical Center, where he was institutionalized pursuant to Florida’s

Baker Act. He ultimately had surgery to repair his broken arm.


      On appeal, Kraus first challenges the district court’s qualified immunity

determination because, he contends, (1) the district court misstated three legal

standards governing the qualified immunity analysis and (2) clearly established

law put defendants on notice that their actions violated Kraus’s constitutional

rights. Kraus then argues that the district court erred in concluding that the officers

were entitled to statutory immunity for the state-law battery claims. Finally, Kraus

asserts that the district court improperly granted summary judgment in favor of

Snyder as to the deliberate-indifference claim.


                                          II

      Qualified immunity protects government officials unless they violate

“clearly established statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Whether a

defendant is entitled to qualified immunity is a question of law decided by the

court. Courson v. McMillian, 939 F.2d 1479, 1486–87 (11th Cir. 1991).




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       In order to receive qualified immunity, the officers first must show that they

acted within the scope of their discretionary authority. Lee v. Ferraro, 284 F.3d

1188, 1194 (11th Cir. 2002). Because that is not disputed here, the burden shifts to

Kraus to show that qualified immunity is inappropriate. Id. In order to meet his

burden, Kraus must show (1) that the officers violated his constitutional rights and

(2) that the illegality of their conduct was “clearly established” when the incident

occurred. Pearson v. Callahan, 555 U.S. 223, 232 (2009). “These two steps do

not have to be analyzed sequentially; if the law was not clearly established, we

need not decide if the Defendants actually violated the Plaintiffs’ rights, although

we are permitted to do so.” Fils v. City of Aventura, 647 F.3d 1272, 1287 (11th

Cir. 2011).


       Kraus challenges two aspects of the district court’s qualified immunity

ruling. First, as a threshold matter, Kraus contends that the district court misstated

three legal standards governing the qualified immunity analysis. Then

separately—and more generally—Kraus argues that the officers were not entitled

to qualified immunity for their actions because clearly established law should have

put them on notice of a constitutional violation. We consider Kraus’s contentions

in turn.


                                          A


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      Kraus asserts that the district court committed three discrete legal errors in

its summary judgment order: (1) relying on an unpublished opinion in requiring

him to show that the officers acted with a “sadistic or malicious purpose”; (2)

relying on the same unpublished opinion in requiring him to cite case law with

“indistinguishable facts” in order to show that the law was clearly established at

the time of the incident; and (3) applying the wrong standard for interpreting the

summary judgment facts in light of the video evidence.


                                           1

      Kraus first contends that the district court erred by citing to an unpublished

decision, Shuford v. Conway, 666 F. App’x 811 (11th Cir. 2016), for the

proposition that Kraus had to “establish that [the officers] acted with a malicious or

sadistic purpose to inflict harm.” He argues that the court cited the standard in

error, as after the Supreme Court’s decision in Kingsley v. Hendrickson we now

require plaintiffs pursuing an excessive-force claim to show only that the use of

force was objectively unreasonable. See 135 S. Ct. 2466, 2473 (2015).


      Kraus misreads the district court’s order. Although it is true that the court

cited Shuford, it did so merely to state that “[i]n looking at what is clearly

established, the Court is bound by the law at the time of the incident,” Shuford, 666

F. App’x at 817, which is clearly correct. See, e.g., Anderson v. Creighton, 483


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U.S. 635, 639 (1987) (whether an official is protected by qualified immunity is

“assessed in light of the legal rules that were clearly established at the time [the

action] was taken”) (internal quotation marks omitted). The district court went on

to state that, because the incident giving rise to this suit occurred before the

Supreme Court’s ruling in Kingsley, Kraus would have to show that it was clearly

established that the officers’ actions were unlawful under the pre-Kingsley

“sadistic and malicious” standard. That is a correct statement of the then-

prevailing law, and we will not disturb the court’s ruling on this ground.


                                           2

      Kraus next argues that the district court erred by requiring him to provide a

case with “indistinguishable facts” in order to show that the officers violated

clearly established law. Kraus again miscasts the district court’s ruling. Although

the court did ask his counsel to provide it with a case with “indistinguishable

facts,” it made clear both at the hearing and in its order that a plaintiff may show

that a right is clearly established in three ways: (1) case law with “indistinguishable

facts,” (2) “a broad statement of principle within the Constitution, statute, or case

law that clearly establishes” the right, or (3) “conduct so egregious that a

constitutional right was clearly violated,” even in the absence of analogous case

law. The court further clarified that the first way of showing a right is clearly

established requires only that a plaintiff provide case law that is “materially
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similar.” Moreover, it is clear from the district court’s order that its analysis was

not limited to whether Kraus presented case law with “indistinguishable facts”;

rather, the order expressly considered and concluded that Kraus failed to satisfy his

burden by way of any of the three methods for proving that a right was “clearly

established.” Again, this was a correct statement of the law, see, e.g., Jones v.

Fransen, 857 F.3d 843, 852 (11th Cir. 2017) (describing three ways plaintiff may

demonstrate that a right is clearly established), and we see no reason to disturb the

district court’s ruling on this basis.


                                           3

       Kraus finally argues that the district court applied the wrong standard for

using a video recording as the lens through which to view purportedly disputed

facts at the summary judgment stage. Kraus contends, essentially, that the court

was bound to accept his version of the facts unless they were “clearly contradicted”

by the video evidence, and that because the court did not make an explicit finding

that the video clearly contradicted his account, it must have applied the wrong

standard.


       The district court was not required to make an explicit finding that the video

“clearly contradicted” his account before viewing the facts in light of the

recording. The Supreme Court has held that “[w]hen opposing parties tell two


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different stories, one of which is blatantly contradicted by the record, so that no

reasonable jury could believe it, a court should not adopt that version of the facts

for ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372,

380(2007). “For instance, when a video recording exists of the pertinent events—

as in this case—we ‘view[ ] the facts in the light depicted by the videotape.’”

Jones v. Michael, 656 F. App’x 923, 926 (11th Cir. 2016) (quoting Scott, 550 U.S.

at 381). Kraus points to no case law emanating from either the Supreme Court or

this Circuit that requires the district court to state explicitly that a video “clearly

contradicts” a plaintiff’s version of events before viewing facts as having been

established by a video recording.


      Here, the district court clearly implied, correctly, that the video footage

contradicted Kraus’s version of events. The court noted that “[t]he parties disagree

about whether Plaintiff was being compliant during the booking process” before

noting that “the video supports the officers’ description of the events.” The court

then recounted the facts “in the light depicted by the videotape,” just as it has been

instructed to do by both this Circuit and the Supreme Court. So yet again, we are

unpersuaded that the district court’s ruling should be disturbed on this basis.


                                            B




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      Kraus also asserts that the officers were not entitled to qualified immunity

for their actions. The district court determined that qualified immunity was

appropriate because Kraus failed to show that the law was clearly established at the

time of the incident. We agree.


      Kraus contends that the law at the time of the incident clearly established

“that an officer may not apply physical force strong enough to cause serious injury

when there is no legitimate safety threat and the citizen is compliant.” That is

correct as far as it goes. However, the rights clearly established by Kraus’s cited

cases are of no benefit to him here. As one might expect from the wording of his

argument, each case that Kraus cites for support involves an appellant who was

fully secured and not resisting in any way. See, e.g., Lee, 284 F.3d at 1199

(suspect arrested, handcuffed, and completely secured); Danley v. Allen, 540 F.3d

1298, 1309 (gratuitous force against a prisoner “who has clearly stopped resisting”

unreasonable); Shuford, 666 F. App’x at 818 (need for force “had completely

subsided”). And in fact, his cases even support the proposition that use of force

may be necessary to ensure an inmate’s compliance. See, e.g., Ort v. White, 813

F.2d 318, 325 (11th Cir. 1987) (“Prison officers must … have the authority to use

that amount of force or those coercive measures reasonably necessary to enforce an

inmate's compliance…”) (internal quotation omitted). Because the district court

found based on the video evidence—and we agree—that Kraus was non-compliant

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at the time of the officers’ use of force, these cases fail to clearly establish that the

officers’ actions were unconstitutional at the time of the incident. The district

court, therefore, correctly concluded that they were entitled to qualified

immunity.


                                           III

      Kraus next argues that the district court improperly granted summary

judgment in favor of Gargan and Sansone on the state-law battery claims. Under

Florida Statute § 768.28(9)(a), no employee of the state will be held liable for a tort

unless he “acted in bad faith or with malicious purpose or in a manner exhibiting

wanton and willful disregard of human rights, safety, or property.” Kraus asserts

that the derogatory language used against him during the booking process shows

that the officers acted in bad faith. As the district court concluded, however, words

alone do not transform an acceptable use of force into one undertaken in bad faith.

See Evans v. Stephens, 407 F.3d 1272, 1282 (11th Cir. 2005) (holding that it is the

totality of the circumstances, and not words alone, that determines whether an

action is unconstitutional). As Kraus did not show that Gargan and Sansone acted

in bad faith, the district court correctly held that they were entitled to immunity

under Florida Statute § 768.28(9)(a).


                                           IV


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      Finally, Kraus contends that the district court erred in granting summary

judgment on his claims against Snyder. Snyder should be liable, Kraus says,

because the sheriff’s office “routinely acted with deliberate indifference to officer

use of force, because the custom and practice of the [sheriff’s office] encouraged

[the officers’] use of excessive force, and because the [sheriff’s office]

affirmatively ratified the conduct of [the officers] in this case.”

      Suing a municipal official in his official capacity—as Kraus has done here—

is the functional equivalent of suing the municipality itself. Owens v. Fulton Cty.,

877 F.2d 947, 951 n.5 (11th Cir. 1989). Municipalities may be found liable under

§ 1983 only when a plaintiff shows: “(1) that his constitutional rights were

violated; (2) that the municipality had a custom or policy that constituted deliberate

indifference to that constitutional right; and (3) that the policy or custom caused

the violation.” McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). “A

policy is a decision that is officially adopted by the municipality, or created by an

official of such rank that he or she could be said to be acting on behalf of the

municipality” and “[a] custom is a practice that is so settled and permanent that it

takes on the force of law.” Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489

(11th Cir. 1997) (internal citation omitted). Thus, in order to prove his claim,

Kraus must show that there was a policy or custom of excessive use of force at the

Martin County Sheriff’s Office. This he fails to do.

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      Kraus first asserts that Snyder is liable under a ratification theory, which

allows a municipality to be held liable when it “actively endors[es] or approv[es]

of the conduct of its employees or officials.” Garvie v. City of Ft. Walton Beach,

Fla., 366 F.3d 1186, 1189 (11th Cir. 2004). However, “[w]hen plaintiffs are

relying not on a pattern of unconstitutional conduct, but on a single incident, they

must demonstrate that local government policymakers had an opportunity to

review the subordinate’s decision and agreed with both the decision and the

decision’s basis before a court can hold the government liable on a ratification

theory.” Salvato v. Miley, 790 F.3d 1286, 1296 (11th Cir. 2015). Here “[t]he

sheriff did not review any part of [the officers’] actions before they bec[a]me final,

much less approve the decision and the basis for it.” Id. (internal quotation marks

omitted). Kraus therefore may not pursue his claims against Sheriff Snyder under

a ratification theory.

      Nor can his claim succeed under a theory that the sheriff’s office was

deliberately indifferent to excessive-force complaints filed against its officers. To

show deliberate indifference, “a plaintiff must present some evidence that the

municipality knew of a need to train and/or supervise in a particular area and the

municipality made a deliberate choice not to take any action.” Gold v. City of

Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). Kraus argues, essentially, that the

sheriff’s office knew that it needed to better supervise Sansone because of previous


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excessive-force complaints against him and that it failed to investigate and follow

up on those complaints. The record shows, however, that the sheriff’s office

investigated each claim made against Sansone and, in the one incident he was

found to have used excessive force, suspended him without pay. Gargan had no

incidents in which he was found to have used excessive force. The district court,

therefore, was correct in concluding that “there are insufficient facts in the record

to show that the Sheriff’s Office was aware of, and deliberately indifferent to, a

custom of using excessive force.”


                                          V

      For the foregoing reasons, the judgment of the district court is AFFIRMED.




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