                                                             [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT            FILED
                           ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                 No. 08-14983                   APRIL 8, 2009
                           ________________________           THOMAS K. KAHN
                                                                  CLERK
                    D. C. Docket No. 07-00104-CV-SPM-WCS

SALVATORE SECONDO,


                                                               Plaintiff-Appellant,

                                       versus

LARRY CAMPBELL,
In his official capacity of Leon County Sheriff,
LARRY FOLSOM,
Deputy Sheriff,
DORIS MUELLER,
Deputy Sheriff,


                                                            Defendants-Appellees.


                           ________________________

                    Appeal from the United States District Court
                        for the Northern District of Florida
                          _________________________

                                   (April 8, 2009)

Before BIRCH, HULL and FAY, Circuit Judges.
PER CURIAM:

       Salvatore Secondo (“Secondo”) appeals the district court’s grant of summary

judgment in favor of Larry Campbell (“Campbell”), sheriff of Leon County,

Florida, and Larry Folsom (“Folsom”) and Doris Mueller (“Mueller”), deputy Leon

County sheriffs (collectively, “Appellees”). Secondo filed a four-count complaint

against Campbell, Folsom and Mueller.1 Although the district court granted

summary judgment in favor of the Appellees on all four counts, Secondo appeals

the court’s decision on only two counts. In the first count (“Count One”), Secondo

argues that the district court erred in granting summary judgment on his 42 U.S.C.

§ 1983 excessive force claim against Folsom and Mueller. Secondo contends that

the court failed to consider direct evidence which showed a genuine issue as to a

material fact, rendering summary judgment inappropriate. On the other count

(“Count Three”), Secondo argues that Folsom and Mueller negligently performed

their duties in effecting his arrest and that Campbell was negligent based on the

theory of repondeat superior. We find no merit in Secondo’s argument regarding

Count Three. His first argument, however, demands closer scrutiny. After careful


       1
          In the original complaint, Count One was a 42 U.S.C. § 1983 claim alleging, inter alia,
excessive force, reckless indifference and unlawful taking. The second count was a state law
assault claim against Folsom. Count Three was a state law negligence claim and the fourth
count was another § 1983 claim alleging violation of Secondo’s property rights and deprivation
of his liberty.

                                                2
consideration of the record evidence, we conclude that the judgment of the district

should be AFFIRMED.

                                   I. BACKGROUND

       The facts of this case are straightforward.2 When viewed in the light most

favorable to Secondo, they reflect the following. On 15 March 2003, Mueller and

Folsom were called to a residence because of a landlord/tenant dispute. Darrell

Bates (“Bates”) and Hillary Brock (“Brock”) informed Mueller and Folsom that

they had been renting the residence in question from Secondo since October 2002

but could not gain entry to the property because the locks had been changed. In an

attempt to verify Bates and Brock’s claim, Mueller contacted the City Utilities

Department through the Sheriff’s Office communications section and confirmed

that the utilities for the property were in Brock’s name.

       During the course of the conversation, Secondo arrived at the residence.

When asked by Folsom why he changed the locks, Secondo denied doing so.

Secondo also denied ever leasing the property to Bates and Brock. A stand-off

ensued, with Secondo refusing to unlock the door to the property, even though he



       2
         Our recitation of the factual background in this case is limited to those facts
surrounding the issues on appeal, namely Counts One and Three of the original complaint.
Because this appeal is from a grant of summary judgment, we take the best set of facts for
Secondo and draw all inferences in his favor. See Davis v. Williams, 451 F.3d 759, 763 (11th
Cir. 2006).

                                               3
had the key on his person. After explaining the eviction process to Secondo,

Folsom determined that Secondo was not going to unlock the residence. Folsom

then advised Bates and Brock “that they were within their rights to force their way

in.” R1-15 at 4. In response, Bates broke a window pane and gained entry into the

residence.

      Secondo became increasingly agitated as the scene developed. He told Bates

and Brock that he intended to post armed guards on the property in order to keep

people out. He called Bates and Brock “scumbags” and loudly declared his intent

to “tear down the house” and “smash every window in the house.” R1-16 at 107,

118. Shortly thereafter, Folsom placed Secondo under arrest for disorderly

conduct.

      During the arrest, Folsom instructed Secondo to place his hands behind his

back in order to be handcuffed. Secondo told Folsom that he had recently

undergone shoulder surgery and was unable to place his hands behind his back.

Instead, Secondo offered to be handcuffed with his arms in front of him. Folsom

told Secondo to place his hands behind his back a second time. When Secondo

refused, Folsom proceeded to handcuff him with his hands behind his back and

place him in the patrol car. Secondo described the event in his deposition as

follows.



                                          4
             And the next thing I know, I was being grabbed. My arm was
      twisted. Both my arms were twisted behind my back, pulled back in a
      very – in a forceful manner. Then my arms were kind of pushed up, at
      which point I felt pops in my shoulders, great discomfort in my
      shoulders. Cuffs were locked down on my wrists, and I felt a great
      deal of pain in my arms, looked down and saw my arms were swelling
      up. In fact, the wrists, both my wrists had swollen above the height of
      the handcuffs. And I was pleading to have the handcuffs removed
      from my wrists, to have me recuffed in the front of my body. And I
      was reeling in pain. . . . [Folsom put his hand] on my head, and with a
      pushing motion down and twisting, I was forced – pushed into the car,
      at which time, when I was pushed into the car, I felt tingling in my
      fingers, and I complained about excessive amounts of pain in my
      arms, that I was having a tingling sensation, and I kept complaining
      while I was in the back of the patrol car.

R1-17 at 137-38. After about five minutes, Secondo was removed from the patrol

car and re-handcuffed with his hands in front of him. He was placed back in the

patrol car and taken to the local jail. Secondo was released on bond the same day.

He did not immediately seek medical attention but rather iced his shoulders and

wrists at home and tried to relax.

      In March 2007, Secondo sued the Appellees and claimed that he incurred

approximately $300,000 worth of medical expenses as a result of their actions on

15 March 2003. The Appellees responded with a motion for summary judgment.

Secondo’s submission in opposition to the motion for summary judgment included

an independent medical examination (“IME”) conducted by Dr. Michael Rohan

(“Rohan”) on 14 November 2007. In his examination of Secondo, Rohan made the



                                         5
following findings concerning Secondo’s shoulders:

             Regarding the right shoulder, he has 90 degrees forward
      elevation, 20 degrees backward elevation, 80 degrees abduction, 20
      degrees adduction, 20 degrees internal rotation and 20 degrees
      external rotation. He has multiple arthroscopic type surgery scars.
             The left shoulder demonstrates 90 degrees forward elevation,
      20 degrees backward elevation, 90 degrees abduction, 20 adduction,
      20 degrees internal rotation and 30 degrees external rotation. He has
      several prominent scars here suggestive of open surgery.

Id. at 5. Reviewing Secondo’s medical history, Rohan noted that on 2 December

2002, Secondo “underwent arthroscopic decompression with debridement of a

labral tear and arthroscopic Bankhart repair of the right shoulder.” Id. at 6.

Rohan’s notes also revealed that on 13 October 2003, Secondo “underwent left

shoulder arthroscopy” and that “[f]indings at that time were that of a Bankhart

lesion and a partial thickness rotator cuff tear.” Id. at 7. Although Rohan listed

several additional operations on both Secondo’s right and left shoulders, these

operations appear to have resulted from injuries sustained by Secondo after the

incident on 15 March 2003. Rohan concluded his examination with the following

formulation:

      This man barely was recovering from right shoulder surgery when he
      was injured by law enforcement personnel by his description in
      putting him in a police car. In addition to the post operative right
      shoulder he also injured his left shoulder. Dr. Loeb has treated him
      surgically on many occasions and has rated him as having a 4%
      impairment on the right side and an 8% impairment on the left side.
      These impairment ratings are bonafide and I believe are directly

                                           6
       related to his injury as described by Mr. Secondo.

Id. at 7-8.

       The district court granted the Appellees’ motions for summary judgment.3

Regarding Secondo’s § 1983 excessive force claim, the court focused almost

exclusively on the handcuffing and did not squarely address the manner in which

Secondo was placed in the patrol car. The court determined that although Secondo

was not resisting arrest, he “did appear to pose a threat to the safety of the officers

and the tenants.” R1-32 at 10. The court found that “the time that [Secondo] was

subjected to the pain and discomfort was very limited . . . [and his] handcuffing

involved de minimis force.” Id. The court interpreted Rohan’s IME as follows:

             After an examination of the affidavit of Dr. Michael Rohan that
       was submitted by [Secondo], it appears that many of [Secondo’s]
       medical injuries were unrelated to the altercation with Deputy Folsom.
       Most injuries appear to be injuries resulting from prior shoulder
       surgeries and wrist injuries. These injuries are not all the result of any
       excessive force used by Deputy Folsom.

Id. at 11. The court concluded that a reasonable jury could not find for Secondo on



       3
         The court also granted summary judgment for Campbell on Secondo’s state law
negligence claim but only after consideration of Secondo’s motion to alter or amend the
judgment. In his motion, Secondo conceded that his state law negligence claim was inapplicable
to Folsom and Mueller by operation of Florida law, but maintained that Campbell remained a
proper party. The district court agreed but nevertheless granted summary judgment on Count
Three in favor of Campbell. The court’s determination was predicated on a finding that
Secondo’s negligence claim failed on both the breach and causation elements. Whereas we
agree with the district court’s grant of summary judgment on Count Three, we do not adopt its
reasoning.

                                              7
the excessive force claim and so granted summary judgment for the Appellees

without considering the application of qualified immunity. See id. at 11. Secondo

now appeals the district court’s grant of summary judgment in favor of Appellees

on Count One and in favor of Campbell on Count Three to us.4

                                       II. DISCUSSION

A. Standard of Review

    1. Excessive Force Argument

       We review the district court’s grant of a motion for summary judgment de

novo and view all evidence and factual inferences in the light most favorable to the

nonmoving party. Turnes v. AmSouth Bank, N.A., 36 F.3d 1057, 1060 (11th Cir.

1994). The district court must enter an order of summary judgment when “there is

no genuine issue as to any material fact.” Mize v. Jefferson City Bd. of Educ., 93

F.3d 739, 742 (11th Cir. 1996) (quotation marks and citation omitted). “For

factual issues to be considered genuine, they must have a real basis in the record.”

Id. (quotation marks and citation omitted). We stress that when considering a

motion for summary judgment, a district court may not “weigh conflicting

evidence or . . . make credibility determinations.” Id. We have held that “[w]here

a non-movant presents direct evidence that creates a genuine issue of material fact,


       4
           On appeal, Secondo also resurrects his state law negligence claims against Folsom and
Mueller.

                                                 8
the only issue is one of credibility; thus, there is no legal issue for the court to

decide.” Id. That said, we also recognize that although “all inferences drawn from

the evidence must be viewed in the light most favorable to the nonmoving party, . .

. [a] court need not permit a case to go to a jury . . . when the inferences that are

drawn from the evidence, and upon which the non-movant relies, are implausible.”

Id. at 742-43 (quotation marks and citation omitted). Moreover, “[w]e may affirm

the district court’s [grant of summary judgment] on any adequate ground, even if it

is other than the one on which the court actually relied.” Smith v. Allen, 502 F.3d

1255, 1280 (11th Cir. 2007) (quotation marks and citation omitted).

       We analyze a § 1983 excessive force claim under the Fourth Amendment’s

objective reasonableness standard. See Davis, 451 F.3d at 767. Our precedent in

this area has set out several guideposts which establish the boundaries of our

inquiry. First, we have held that “[i]n order to determine whether the amount of

force used by a police officer was proper, a court must ask whether a reasonable

officer would believe that this level of force is necessary in the situation at hand.”

Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2005) (quotation marks and citation

omitted). We note that our inquiry in an excessive force case is an objective one.

See id. at 1198 n.7. The relevant factors in our determination of reasonableness

include: “the severity of the crime at issue, whether the suspect poses an immediate



                                             9
threat to the safety of the officers or others, and whether he is actively resisting

arrest or attempting to evade arrest by flight.” Id. at 1198 (quotation marks and

citation omitted). Second, we also consider “the need for the application of force,”

“the relationship between the need and the amount of force used,” and “the extent

of the injury inflicted.” Leslie v. Ingram, 786 F.2d 1533, 1536 (11th Cir. 1986)

(citation omitted). Third, we note that “the application of de minimis force,

without more, will not support a claim of excessive force.” Nolin v. Isbell, 207

F.3d 1253, 1257 (11th Cir. 2000) . Fourth, we have held that the extent of injury is

not determinative, because “reasonable force does not become excessive force

when the force aggravates (however severely) a pre-existing condition the extent of

which was unknown to the officer at the time.” Lee, 284 F.3d at 1200 (quotation

marks and citation omitted). Finally, we have noted that force is more likely to be

unlawful if it occurs “after the arrest [has] been fully effected, the arrestee

completely secured, and all danger vitiated,” as opposed to force employed by an

officer while in the process of securing a suspect. Id. at 1199-1200.



      2. State Law Negligence Argument

      Secondo’s negligence argument requires us to apply Florida law. See 28

U.S.C. § 1652; Esfeld v. Costa Crociere, S.P.A., 289 F.3d 1300, 1306-07 (11th Cir.



                                           10
2002). The Florida courts have consistently and unambiguously held that “it is not

possible to have a cause of action for negligent use of excessive force because

there is no such thing as the negligent commission of an intentional tort.” City of

Miami v. Sanders, 672 So. 2d 46, 48 (quotation marks omitted), review denied,

683 So. 2d 484 (Fla. 1996); see also Comm’r of Internal Revenue v. Estate of

Bosch, 387 U.S. 456, 465, 87 S. Ct. 1776, 1782 (1967) (“[A]n intermediate

appellate state court is a datum for ascertaining state law which is not to be

disregarded by a federal court unless it is convinced by other persuasive data that

the highest court of the state would decide otherwise.”) (quotation marks, citation,

and alterations omitted). That said, “a separate negligence claim based upon a

distinct act of negligence may be brought against a police officer in conjunction

with a claim for excessive use of force, . . . [but] the negligence component must

pertain to something other than the actual application of force during the course of

arrest.” Sanders, 672 So. 2d at 48 (citation omitted).

B. Analysis

      Because the Florida courts have conclusively established that a cause of

action for the negligent use of excessive force is an oxymoron, Secondo’s state law

negligence argument must fail. Although Secondo invites us to consider his

placement in the patrol car as separate and distinct from Folsom’s actions in



                                          11
effecting his arrest, we must decline the invitation. We conclude that the force

used in effecting an arrest is commonly understood to mean both the force required

to handcuff an individual and the force required to place him or her into a patrol

car. We also note that Secondo’s proffered interpretation would have the perhaps

unintended consequence of sapping his § 1983 excessive force argument of much

of its force. Florida law dictates that “[i]f excessive force is used in an arrest, the

ordinarily protected use of force by a police officer is transformed into a battery.”5

Id. at 47. Accordingly, we conclude that the district court did not err in granting

summary judgment on Secondo’s state law negligence claim.

       We now turn to Secondo’s § 1983 excessive force argument. Secondo

contends that Folsom used excessive force against him during his arrest, resulting

in significant injury to both of his shoulders. Secondo’s arrest did not involve a

serious crime, he did not resist arrest, and he informed Folsom about his recent

shoulder surgery (on his right shoulder) before being handcuffed. Secondo

presented direct evidence in the form of his deposition and in the form of Rohan’s

IME. We find it notable that Secondo alleges not only aggravation of a preexisting

injury to his right shoulder, but also a fresh injury to his left shoulder. We also



       5
         Because Secondo did not challenge the district court’s determination regarding his
assault claim, we deem that issue to have been abandoned. See Sepulveda v. U.S. Att’y Gen.,
401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (per curiam).

                                              12
consider Secondo’s argument that his injuries were caused, in part, by the action of

being placed roughly in the back of the patrol car after being handcuffed.

      When viewed in the light most favorable to Secondo, we are compelled to

conclude that the evidence presented by Secondo and the reasonable inferences

derived therefrom fail to meet the “objectively reasonable” test we must apply in

this case. See Graham v. Conner, 490 U.S. 386, 397, 109 S. Ct. 1865, 1872

(1989). “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. at 396, 109 S. Ct. at

1871-72. The use of only de minimis force, without more, will not support an

excessive force claim. Nolin v. Isbell, 207 F.3d 1253, 1257 (11th Cir. 2000). The

extent of the injury is not determinative, because “reasonable force does not

become excessive force when the force aggravates (however severely) a pre-

existing condition . . . unknown to the officer at the time.” Lee v. Ferraro, 284

F.3d 1188, 1200 (11th Cir. 2002) (quotation marks and citation omitted). We have

also noted that force is more likely to be unlawful if it occurs after the suspect has

been secured, arrested, and any danger vitiated, as opposed to force that occurred

when the officer was securing the suspect. Id. at 1199-1200.

      With that legal framework in mind, we cannot say that Folsom and



                                           13
Mueller’s actions in effectuating Secondo’s arrest rose to the level of a

constitutional violation. Although Secondo informed Folsom about his right-

shoulder injury prior to being handcuffed, we have observed that “a police officer

need not credit everything a suspect tells him . . . [and] [t]his idea is especially true

when the officer is in the process of handcuffing a suspect.” Rodriguez v. Farrell,

294 F.3d 1276, 1278 (11th Cir. 2002). We also find it notable that Folsom

readjusted Secondo’s handcuffs only five minutes after Secondo began to register

his discomfort.

       Moreover, although Secondo’s arrest was for a relatively minor infraction

and he did not resist arrest in any way, our view of the record evidence does not

reveal any indication that Folsom handled Secondo in an objectively unreasonable

manner. The action of handcuffing a suspect and placing him or her in a patrol car

necessarily requires a certain degree of force. Although Secondo maintains that

Folsom’s use of force in both handcuffing him and in placing him in the patrol car

was excessive, the record evidence offers no suggestion that Folsom proceeded any

differently than a reasonable officer would under similar circumstances.

Accordingly, under the first prong of the Saucier6 analysis, we conclude that

Secondo has failed to establish the constitutional violation of use of excessive


       6
         See Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151 (2001); see also Pearson v. Callahan,
__ U.S. __, 129 S. Ct. 808, 818 (2009).

                                               14
force.

                                      III. CONCLUSION

         Secondo appeals the district court’s grant of summary judgment in favor of

the Appellees on his 42 U.S.C. § 1983 excessive force claim and his state law

negligence claim. We find no merit in Secondo’s state law negligence argument

and so AFFIRM the district court’s grant of summary judgment. We AFFIRM the

court’s grant of summary judgment in favor of the Appellees on the § 1983 claim

because the officers’ objectively reasonable conduct did not constitute excessive

force and did not rise to the level of a constitutional violation.

         AFFIRMED.




                                           15
