         Case: 14-14616   Date Filed: 06/09/2015   Page: 1 of 11


                                                       [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 14-14616
                       Non-Argument Calendar
                     ________________________

                  D.C. Docket No. 1:12-cv-02691-AT



AUDREY EILEEN MORRISON,


                                                          Plaintiff–Appellant,

versus

CITY OF ATLANTA,
MAYOR OF THE CITY OF ATLANTA,
CEASAR C. MITCHELL,
OFFICER ROBERT A. BOYD,
OFFICER G. WALKER, et al.,


                                                      Defendants–Appellees.

                     ________________________

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

                            (June 9, 2015)
             Case: 14-14616     Date Filed: 06/09/2015   Page: 2 of 11


Before HULL, ROSENBAUM and DUBINA, Circuit Judges.

PER CURIAM:
      Appellant Audrey Morrison appeals the district court’s order granting

summary judgment to the City of Atlanta and to Officers Boyd and Walker on her

42 U.S.C. § 1983 claims for excessive force and inadequate medical care. We

affirm.


                               I. BACKGROUND
      A. Facts

      We construe the facts in the light most favorable to Morrison, as did the

district court. The facts arise from Morrison’s attendance at a concert at Chastain

Park Amphitheater in August 2010. Morrison attended the Friday night concert

with her husband and one of his co-workers. During the concert, Morrison moved

to approach the stage and noticed a security guard directing other attendees to

move back from the stage. She decided to go up the bleachers, away from the

stage, and smoke a cigarette. On the way up the stairs, someone grabbed her

around the throat and forcefully slammed her down onto the cement. She landed

on the right side of her body and her face hit the cement. It was dark, and she did

not know who attacked her, so she kicked the attacker in defense. She then heard

her husband ask an individual why he slammed his wife to the ground. At that

point, Morrison realized it was an officer. The officer punched her husband in the



                                         2
              Case: 14-14616    Date Filed: 06/09/2015    Page: 3 of 11


face, knocked him to the ground and then smashed Morrison’s face into the cement

until he secured her with handcuffs. Morrison stated that although she was injured

and in pain, no EMS personnel checked her injuries. She did admit that she and

her husband had been drinking at the concert.

      The officer transported Morrison and her husband to a police station.

Morrison did not identify her specific injuries, but claimed that she sustained

abrasions to her face, neck, shoulder, and knee. During the five hours the police

detained her at the station, no one checked her injuries or cleaned her wounds.

During this time, she repeatedly asked to use a restroom, but none of the officers

responded to her request. Eventually, she soiled herself. Morrison stated that no

officer offered her or her husband water during their detention. At some point, her

husband was able to use a restroom and get some water. Morrison asked him to

bring her some water in his mouth. He was able to do that, and he spit the water

into her mouth.

      After someone informed Morrison that she was going to jail and would not

be released until Monday, she started “freaking out” and hyperventilating. She

was concerned for her 2 year-old child, who was with a sitter and had a medical

condition that required regular medications. The sitter did not have enough

medicine for the child, and Morrison begged the officers to allow her to call the

sitter, but she received no response. Morrison became so distraught and anxious



                                          3
              Case: 14-14616     Date Filed: 06/09/2015   Page: 4 of 11


and requested someone help her obtain her medicine, but no one offered to help.

She then began to bang her head on the wall to get attention and treatment.

Eventually, officers transported her to the Fulton County Jail, where she remained

until early the next day, when the authorities released her.


      B. Procedural History

      Morrison filed her complaint against the City of Atlanta, Officers Boyd and

Walker, Fulton County, and other defendants asserting claims under 42 U.S.C.

§ 1983 and state law for excessive force and inadequate medical care. The Fulton

County defendants and the City defendants moved for summary judgment on all

claims. The district court granted summary judgment to all defendants on all

claims. Morrison filed her notice of appeal. This court granted a joint motion to

dismiss with prejudice the appeal as to the Fulton County defendants.


                                    II. ISSUE
      Whether the district court erred in granting summary judgment to the City

defendants on Morrison’s 42 U.S.C. § 1983 claims.


                         III. STANDARD OF REVIEW
      We review the district court’s grant of summary judgment de novo. Myers

v. Bowman, 713 F.3d 1319, 1326 (11th Cir. 2013).




                                          4
              Case: 14-14616     Date Filed: 06/09/2015   Page: 5 of 11


      Like the district court, we “must consider the facts and the justifiable

inferences in the light most favorable to the nonmoving party,” which here is

Morrison. West v. Davis, 767 F.3d 1063, 1066 (11th Cir. 2014). “Summary

judgment may be granted only if there is no genuine dispute of any material fact

and the movant is entitled to judgment as a matter of law.” Id. “An issue of fact is

‘material’ if, under the applicable substantive law, it might affect the outcome of

the case. An issue of fact is ‘genuine’ if the record taken as a whole could lead a

rational trier of fact to find for the nonmoving party.” Harrison v. Culliver, 746

F.3d 1288, 1298 (11th Cir. 2014) (quoting Hickson Corp. v. N. Crossarm Co., 357

F.3d 1256, 1259–60 (11th Cir. 2004)).


                                IV. DISCUSSION
      A. Excessive Force
      “The Fourth Amendment’s freedom from unreasonable searches and

seizures encompasses the plain right to be free from the use of excessive force in

the course of an arrest.” Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002).

“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.” Id. (quoting Graham v. Connor,

490 U.S. 386, 396, 109 S. Ct. 1865, 1871–72 (1989)). This circuit has explained

that the “application of de minimis force, without more, will not support” an


                                          5
              Case: 14-14616     Date Filed: 06/09/2015    Page: 6 of 11


excessive force claim and will not defeat an officer’s qualified immunity. Nolin v.

Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000). Qualified immunity functions as

immunity from suit, and officials seeking qualified immunity must first establish

that they were acting within their discretionary authority when the alleged

constitutional violation occurred.” Lewis v. City of W. Palm Beach, 561 F.3d 1288,

1291 (11th Cir. 2009). The burden then shifts to the plaintiff, who can overcome

the qualified immunity defense by showing that (1) the defendant’s conduct

violated a constitutional right and (2) this right was “clearly established at the time

of the alleged violation.” Townsend v. Jefferson Cnty., 601 F.3d 1152, 1158 (11th

Cir. 2010).

       To prevail on a Fourth Amendment excessive-force claim, the plaintiff must

show both that a seizure occurred and the force used was unreasonable. See

Troupe v. Sarasota Cnty., Fla., 419 F.3d 1160, 1166 (11th Cir. 2005). “The

‘reasonableness’ inquiry in an excessive force case is an objective one: the

question is whether the officer’s actions are ‘objectively reasonable’ in light of the

facts and circumstances confronting him, without regard to his underlying intent or

motivation.” Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243,

1248 (11th Cir. 2004) (emphasis added). As a result, the question whether Officer

Boyd acted unconstitutionally is answered from the perspective of a reasonable

officer.



                                           6
              Case: 14-14616     Date Filed: 06/09/2015    Page: 7 of 11


      The “reasonableness” of a particular use of force must be judged from
      the perspective of a reasonable officer on the scene, rather than with
      the 20/20 vision of hindsight. . . . The calculus of reasonableness
      must embody allowance for the fact that police officers are often
      forced to make split-second judgments—in circumstances that are
      tense, uncertain, and rapidly evolving—about the amount of force that
      is necessary in a particular situation.

Troupe, 419 F.3d at 1168 (quoting Menuel v. City of Atlanta, 25 F.3d 990, 996

(11th Cir. 1994)).

      Morrison’s excessive force claim fails. First, in her declaration, she

admitted that she had no idea who slammed her to the ground. Despite this fact,

she submitted no testimony or other evidence (other than her own hearsay

statement) from the one person who allegedly identified Officer Boyd as her

attacker—her husband—in opposition to the defendants’ motion for summary

judgment. On the other hand, Officer Boyd attested that he had no interaction with

Morrison until after she was already on the ground and engaged in an altercation

with private security officers. Morrison offered no competent evidence to refute

Boyd’s statement or to support her conclusory assertion that Officer Boyd was the

individual who slammed her to the ground. Against Officer Boyd’s specific

testimony regarding when his involvement with Morrison began, Morrison’s

conclusory and speculative assertion is insufficient to raise a genuine issue for trial.

See Leigh v. Warner Bros. Inc., 212 F.3d 1210, 1217 (11th Cir. 2000) (holding that




                                           7
               Case: 14-14616       Date Filed: 06/09/2015      Page: 8 of 11


an affidavit that contains a brief conclusory assertion without supporting facts has

no probative value).

       Second, Morrison cannot demonstrate that the force Officer Boyd used to

detain her was objectively unreasonable. Morrison admits that she had been

drinking at the concert, and when Officer Boyd arrived at the scene, Morrison was

struggling with security personnel. Officer Boyd used the force necessary to

subdue Morrison. Moreover, Morrison does not demonstrate that she suffered

more than minor injuries. She does not identify any specific injuries, but contends

that she did not receive medical care to clean her open wounds. Morrison fails to

overcome her burden to show that Officer Boyd is not entitled to qualified

immunity under these circumstances. Accordingly, the district court properly

granted summary judgment to Officer Boyd. 1

       B. Inadequate medical care

       Morrison alleges that Officers Boyd and Walker provided no medical care

for her injuries at the event facility or in the police precinct and contends that such

conduct violated her constitutional rights.




       1
        Morrison made no claims as to excessive force against Officer Walker and made no
argument that any other defendant, including the City, should be liable for Officer Boyd’s
conduct. Thus, the district court properly dismissed these claims and granted judgment for
Officer Walker and the City on Morrison’s claim of excessive force.



                                              8
              Case: 14-14616     Date Filed: 06/09/2015   Page: 9 of 11


      Due process requires penal facilities to provide inmates with adequate

medical care. A pretrial detainee’s rights exist under the due process clause of the

Fourteenth Amendment rather than the Eighth Amendment. Nonetheless, this

circuit has applied the Eighth Amendment’s “serious medical needs” analysis to

pretrial detainee’s claims of inadequate medical treatment under the Fourteenth

Amendment. See Hamm v. DeKalb Cnty., 774 F.2d 1567, 1574 (11th Cir. 1985).

To prevail on a deprivation of medical care claim, a prisoner must show that she

suffered a serious medical need, the defendants exhibited deliberate indifference to

that need, and the indifference caused the plaintiff’s injury. See Mann v. Taser

Int’l, Inc., 588 F.3d 1291, 1306–07 (11th Cir. 2009).

      Morrison cannot prevail on her claim of inadequate medical care. She does

not present any sufficient evidence that she suffered from “an objectively serious

medical need,” so grave that “if left unattended, pose[d] a substantial risk of

serious harm.” Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000) (internal

quotation marks and alterations omitted). Morrison mentions only that she

suffered facial wounds that were not cleaned and eventually became infected.

These wounds do not constitute a serious medical need. See Duncan v. Corr. Med.

Serv., 451 F. App’x 901, 903 (11th Cir. 2012) (stating that a serious medical need

can be either (1) “one that has been diagnosed by a physician as mandating

treatment or one that is so obvious that even a lay person would easily recognize



                                          9
             Case: 14-14616     Date Filed: 06/09/2015    Page: 10 of 11


the necessity for a doctor’s attention” or (2) one where “a delay in treating the need

worsens the condition” (quoting Mann, 588 F.3d at 1307)). Accordingly, the

district court properly granted judgment to the officers on Morrison’s inadequate

medical needs claim.


                                V. CONCLUSION
      The district court properly granted summary judgment to the City and the

officers on Morrison’s 42 U.S.C. § 1983 claims of excessive force and inadequate

medical care. The district court also properly dismissed the state law claims of

assault and battery against the City, as it was entitled to sovereign immunity. See

Cameron v. Lang, 549 S.E.2d 341, 346 (Ga. 2001) (sovereign immunity protects

all levels of government from legal action unless they have waived immunity).

Similarly, the district court properly granted official immunity to the officers on

Morrison’s state law claims of assault and battery because she failed to offer any

evidence that either officer acted negligently or with malice. See Gilbert v.

Richardson, 452 S.E.2d 476, 481 (Ga. 1994) (finding that official immunity offers

limited protection from suit to governmental officers and employees); Grammens

v. Dollar, 697 S.E.2d 775, 777 (Ga. 2010) (noting that public officer is personally

liable for acts negligently performed or acts performed with malice or an intent to

injure). Accordingly, we affirm the district court’s grant of summary judgment to

the defendants.


                                          10
    Case: 14-14616   Date Filed: 06/09/2015   Page: 11 of 11


AFFIRMED.




                              11
