            Case: 13-12586   Date Filed: 12/04/2013   Page: 1 of 3


                                                      [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 13-12586
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 2:11-cv-00353-WKW-WC


JAIME STEWART,

                                                      Plaintiff-Appellant,

                             versus


CITY OF MONTGOMERY, a Municipal corporation,
Q. A. WILKINS, in his individual capacity,
E. S. PINKETT, in his individual capacity,

                                                Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Alabama
                      ________________________

                             (December 4, 2013)

Before TJOFLAT, JORDAN, and HILL, Circuit Judges.
               Case: 13-12586     Date Filed: 12/04/2013    Page: 2 of 3


PER CURIAM:

      Jaime Stewart brought this action against the City of Montgomery and E.S.

Pinkett alleging a violation of his federal constitutional right to be free from

excessive force during his arrest, as well as a claim for damages as the result of

assault and battery in violation of state law. The City of Montgomery is alleged to

have maintained a policy or custom of permitting the use of excessive force by

failing to investigate and discipline officers for known incidents of excessive force.

Defendants filed motions for summary judgment, which the district court granted.

Stewart brought this appeal.

      The district court found that Stewart’s own version of the evidence

conclusively demonstrated that Officer Pinkett could not have been the officer who

allegedly kicked Stewart in the face during his arrest. Our review of the record

supports this conclusion.

      Stewart’s deposition testimony was that two officers arrived at the scene of

an altercation between himself and his uncle. These officers put him on the ground

and handcuffed him. Subsequently, a third officer arrived. It was this third officer,

Stewart testified, that kicked him in the face. Stewart identifies this officer as

Officer Pinkett. Stewart also testified that this third officer was sent away from the

scene by a fourth officer.




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      The evidence, however, does not support these claims. The evidence

undeniably shows that Officer Pinkett was one of the original two arresting officers

and that he remained on the scene and even drove Stewart to the hospital and later

to the jail. Therefore, the district court concluded, the undisputed evidence shows

that Officer Pinkett could not have been the officer who Stewart alleges kicked

him. We find no fault in this conclusion.

      As there is no individual liability under § 1983, there can be no municipal

liability. Therefore, we find no error in the dismissal of Stewart’s claim against the

City of Montgomery. Finally, the district court correctly dismissed the remaining

state law claims.

      Accordingly, the district court’s entry of summary judgment for defendants

on Stewart’s § 1983 claims and the dismissal without prejudice of his state law

claims are due to be

       AFFIRMED.




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