              Case: 14-11899     Date Filed: 01/29/2015   Page: 1 of 6


                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT

                           ________________________

                                 No. 14-11899
                             Non-Argument Calendar
                           ________________________

                    D. C. Docket No. 2:12-cv-00108-LGW-JEG


VICKIE ALDAY,

                                                                 Plaintiff-Appellant,

                                       versus

MARLON L. GROOVER,
State Trooper, in his individual capacity,

                                                               Defendant-Appellee.

                           ________________________

                   Appeal from the United States District Court
                      for the Southern District of Georgia
                        _________________________

                                 (January 29, 2015)

Before WILLIAM PRYOR, MARTIN, and ANDERSON, Circuit Judges.

PER CURIAM:

      Plaintiff Vickie Alday appeals the district court’s grant of summary
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judgment in favor of Defendant Marlon Groover on her claims pursuant to 42

U.S.C. §1983. Alday alleged that Groover, a Georgia State Trooper, used

excessive force and unlawfully detained her following a traffic stop. The district

court concluded that Groover had not violated any of Alday’s constitutional rights.

We affirm the judgment in favor of Groover but, as to the excessive force claim,

the Court does so on the alternative ground that Groover is entitled to qualified

immunity for his actions, without deciding whether the force was constitutional.

      Viewing the facts in the light most favorable to the Alday, Groover stopped

Alday in Wayne County, Georgia, while driving her Ford Excursion. Alday failed

to maintain her lane and subsequently ran off of the pavement while pulling over.

Alday then exited her vehicle at which point Groover detected an odor of alcohol.

Although Alday initially denied consuming alcohol, she then confessed to having

done so. She failed to complete Georgia’s standard field sobriety tests, and

Groover took her into custody, handcuffing her behind her back.

      An hour elapsed between Groover arresting Alday and their arrival at the

Wayne County Detention Center. Groover pulled into the sally port and told

Alday to exit the vehicle. She refused and asked to have somebody accompany her

and Groover into the building. Ten seconds after Groover gave his exit instruction

he readied his Taser and pointed it at Alday. Groover waited another twenty-seven

seconds and removed the barbs from the Taser cartridge so that the Taser would


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operate only in the dry-stun mode. Groover then entered the back seat of his

cruiser and applied the Taser to Alday’s neck for five to ten seconds, at which

point she complied and exited the vehicle.

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

the record and drawing all reasonable inferences in the light most favorable to the

non-moving party.” Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th

Cir. 2002). Courts shall grant summary judgment only when “there is no genuine

issue as to any material fact.” Fed. R. Civ. P. 56(c). Although Alday’s primary

claim on appeal asserts excessive force, she may also have raised an unlawful

arrest claim. We address both.

      A. Unlawful Arrest

      The Fourth Amendment guarantees the right to be free from arrest without

probable cause. Crosby v. Monroe Cnty., 394 F.3d 1328, 1332 (11th Cir. 2004).

The Supreme Court defines probable cause as “facts and circumstances ‘sufficient

to warrant a prudent man in believing that the (suspect) had committed or was

committing an offense.’” Gerstein v. Pugh, 420 U.S. 103, 111, 95 S. Ct. 854, 862

(1975). Groover had probable cause to arrest Alday for driving under the influence

of alcohol. Groover smelled an odor of alcohol and Alday admitted to drinking.

She also demonstrated evidence of unsafe driving by failing to maintain her lane.

Under Georgia law, this conduct creates a prima facie case of being a less-safe


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driver under the influence of alcohol. O.C.G.A. §40-6-391(a)(1). Furthermore, the

Georgia Court of Appeals has upheld convictions of this crime on similar evidence.

See Pecina v. State, 554 S.E.2d 167, 171 (Ga. Ct. App. 2001) (concluding that the

odor of alcohol, open beer cans, the driver’s physical manifestation of intoxication,

and the driver’s failure to maintain lane constituted sufficient evidence to convict

of DUI).

      B. Excessive Force

      This Court may affirm the district court “on any ground supported by the

record even if that ground was not considered by the district court.” Seminole

Tribe of Fla. v. Fla. Dep’t of Revenue, 750 F.3d 1238, 1242 (11th Cir. 2014). The

district court concluded that “no reasonable jury could find that Groover was

motivated by a malicious and sadistic intent to cause harm that shocks the

conscience, rather than a good-faith effort to gain Alday’s compliance.” This

Court need not reach that conclusion because we determine that Groover is entitled

to qualified immunity.

      Qualified immunity protects government officials sued in their individual

capacities if “their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). The Supreme Court has adopted a two-part

test for evaluating a claim of qualified immunity. The plaintiff must show that (1)


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there was a violation of the Constitution, and (2) that the illegality of the

defendant’s actions was clearly established at the time of the incident. Hoyt v.

Cooks, 672 F.3d 972, 977 (11th Cir. 2012). This Court need not decide whether

there was a constitutional violation if illegality of the conduct was not clearly

established at the time. Id.

      Alday has cited no case with materially similar facts from the Supreme

Court, the Eleventh Circuit, or the Supreme Court of Georgia which might have

given Groover fair warning that his actions were unconstitutional, nor has our

research revealed such a case. Thus Alday can surmount the qualified immunity

hurdle only if Groover’s conduct was “so far beyond the hazy border between

excessive and acceptable force that [Groover] had to know he was violating the

Constitution even without case law on point.” Willingham v. Loughnan, 321 F.3d

1299, 1303 (11th Cir. 2003).

      However, we have the benefit of some guidance from Buckley v. Haddock,

292 F. App’x 791 (11th Cir. 2008), where this Court granted qualified immunity to

an officer using a Taser to gain the compliance of a handcuffed suspect. There, a

handcuffed, uncooperative plaintiff refused an officer’s order to move from the

ground to the patrol car. Id. at 792-93. The officer applied the Taser a total of

three times to the uncompliant, but otherwise sedate, plaintiff. Id. Two judges of

this court concluded that the first two taser shocks did not violate the Constitution.


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Id. at 798-99 (Dubina, J., concurring).

       While the unpublished Buckley opinion is not binding precedent and

certainly does not establish that the use of taser shock on a handcuffed plaintiff to

bring compliance is constitutional, the clear views of those two judges of this court

are relevant to the issue of whether the lesser conduct in the instant case violated

clearly established constitutional law. 1 For this reason, Groover is entitled to

qualified immunity.

       AFFIRMED. 2




       1
         In addressing the issue of clearly established constitutional law, we have “take[n] note
of the perspective of reasonable jurists who have attempted to articulate the legal landscape [in
non-binding precedent].” Denno v. Sch. Bd. of Volusia Cnty., 218 F.3d 1267, 1272 (11th Cir.
2000).
       2
           Appellant’s motion to file out of time reply brief is GRANTED.
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