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                                                          [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 18-14568
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 2:17-cv-00013-LGW-BWC


LISA VERONICA VARNADORE,
                                                            Plaintiff-Appellant,

                                  versus

BRANDON MERRITT,

                                                           Defendant-Appellee.

                       ________________________

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

                              (July 30, 2019)

Before WILSON, BRANCH, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Plaintiff-Appellant Lisa Veronica Varnadore (“Varnadore”), individually

and in her representative capacities as the administratrix of her deceased son

Joshua Foskey’s (“Foskey”) estate and as next friend of Jenna Grayce Foskey,

appeals the district court’s decision granting Defendant-Appellee Brandon

Merritt’s (“Merritt”) motion for summary judgment. In granting that motion, the

district court dismissed Varnadore’s 42 U.S.C. § 1983 claim that Merritt violated

the Fourth Amendment to the United States Constitution when he shot and killed

Foskey, who was unarmed, during a brief roadside encounter. The district court

also dismissed several related state law claims on the basis of official immunity.

      We have closely reviewed the record in this case, including video taken from

the dashboard camera in Merritt’s patrol car, audio recordings of 911 calls, and

audio recordings of radio correspondence between Merritt and a 911 operator. We

have also carefully reviewed the parties’ briefs and considered the relevant legal

standards. Following this review, we conclude that Merritt is entitled to qualified

immunity because video evidence of the shooting and the surrounding

circumstances makes it clear that no reasonable jury could find that Merritt lacked

an objectively reasonable basis for using deadly force against Foskey under the

circumstances of this tragic case. We also conclude that the district court did not

err when it dismissed Varnadore’s state law claims. Consequently, we affirm the

district court’s decision granting Merritt’s motion for summary judgment.



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                          I. FACTUAL BACKGROUND

      We assume the parties are familiar with the record of this case and recount

the facts and procedural history in this opinion only the extent necessary to provide

context for our decision. The events giving rise to this appeal occurred on the

morning of May 22, 2014. About 9:00 a.m. that day, Varnadore called 911 to

request an ambulance because Foskey, her 34-year-old son, was locked inside his

pickup truck outside her home. He was asleep and sweating profusely. On a

second call shortly thereafter, Varnadore reported to the 911 operator that Foskey

had awakened and “took off in the truck.” She also said he was “staggering around

and talking crazy” and that a “needle had fallen out of the truck.” Finally,

Varnadore reported to the 911 operator that Foskey told her before he left: “I’m not

going to jail, I want to die.”

      Merritt, then a sheriff’s deputy in Jeff Davis County, was dispatched to

Varnadore’s residence. He arrived in the area shortly before 9:15 a.m. just as

Foskey’s truck spun out onto the two-lane highway fronting Varnadore’s home.

Merritt activated the blue lights on his patrol car, informed the 911 center he had

seen the truck, and began to pursue Foskey. During the two-minute chase that

followed, all of which is captured on Merritt’s dashboard camera, Merritt’s patrol

car reached speeds of 100 miles per hour or more. Foskey’s truck was at times “all




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over the road,” and he drove in the wrong lane for several seconds shortly after an

oncoming car passed going the opposite direction.

      Merritt caught up with Foskey just as the truck returned to the correct lane.

The two vehicles crossed a small bridge and Foskey slammed on his brakes,

bringing the truck to a sudden and forceful stop. The two left wheels of the truck

came to rest near the white line marking the right shoulder of the road, and the

right side of the truck was parked in the grass alongside a dense tree line next to

the road. Merritt stopped his patrol car about sixteen yards behind Foskey’s truck

and positioned himself behind the open driver’s side door of his patrol car. By

now, the 911 operator had informed Merritt that Foskey was under the influence

and suicidal.

      Merritt’s dashboard camera also captured the brief roadside encounter that

followed. A moment after Merritt’s patrol car comes to a complete stop, Foskey is

shown swinging open the driver-side door of his truck. He then immediately steps

out of the truck and faces his body toward Merritt’s patrol car (with his back to the

truck’s open driver-side door). Foskey then stares in Merritt’s direction for a few

seconds as he appears to reach around inside the truck as if grasping for something.

Although the video from Merritt’s dashboard camera did not record any audio,

Merritt’s testimony reveals—and Varnadore does not dispute—that Merritt twice




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told Foskey to “show me your hands” (once before drawing his handgun and once

after). According to Merritt, Foskey yelled back at him and said “no.”

       The dashboard camera then shows Foskey’s head and upper body disappear

from view as he leans inside the truck. The center console of the truck appears to

open.1 Two to three seconds later, Foskey jumps from the truck—facing Merritt’s

patrol car—and pulls his right arm across his body. His right hand moves quickly

from the left side of his torso near his beltline upward and toward Merritt. Several

unidentified objects are visible in his right hand. Merritt fires a single shot from

his handgun.2 The shot strikes Foskey in the neck and he falls to the ground.

       Only twenty seconds passed from the time Merritt stopped his car behind

Foskey until the time he fired his handgun. Aside from having his handgun trained

on Foskey and instructing him at least twice to show his hands, Merritt gave no

express warning that he would use deadly force. It was later discovered that

Foskey was unarmed. The unidentified objects in his right hand were a CD case

and two pieces of paper. Foskey eventually died at the scene.

                          II. PROCEDURAL BACKGROUND

       Varnadore filed an action in the United States District Court for the Southern

District of Georgia seeking damages under 42 U.S.C. § 1983 for a violation of the


       1
           Merritt later testified that he did see Foskey “flip the console.”
       2
           Merritt also testified that, at this point in time, he was “backing up” toward the driver-
side taillight of his patrol car in an effort to seek safe cover.


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Fourth Amendment to the United States Constitution. She also alleged several

state law claims and asked the district court to exercise its supplemental

jurisdiction to consider those claims. The parties conducted limited discovery, and

Merritt moved for summary judgment on grounds that he did not use excessive

force because the act of shooting Foskey was objectively reasonable under the

circumstances. He also argued he was entitled to qualified immunity because case

law had not clearly established that the force he used under the circumstances was

unlawful. As to the state law claims, Merritt argued that he was entitled to official

immunity.

      The district court granted Merritt’s motion for summary judgment. Relying

heavily on the video evidence taken from Merritt’s dashboard camera, the district

court concluded that Merritt did not use excessive force in violation of the Fourth

Amendment because “it was objectively reasonable for [Merritt] to believe that he

was in a sho[o]t or be shot situation.” In particular, the district court first found

that Foskey’s erratic driving during the traffic chase potentially put others at risk

but would not alone support the use of deadly force because it would not put a

reasonable officer on notice that Foskey might be armed or violent. It then focused

on Foskey’s behavior during the roadside encounter and concluded that he “would

have appeared to a reasonable officer to be gravely dangerous.” Among other

things, the district court emphasized the manner in which “Foskey quickly [swung]



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his body around in one fast motion, out of the car,” and also how “Foskey’s hand

swung up from the waist, across his body, and directly toward Deputy Merritt like

someone raising a handgun about to fire.” Finally, the district court noted that

Foskey “refused to comply with Deputy Merritt’s order to show his hands,” instead

hiding his hands in the truck and opening the center console.

      The district court also exercised its discretion to decide Varnadore’s state

law claims. It did so primarily at the insistence of Varnadore’s counsel, who

acknowledged at a hearing before the district court that “if you [the district court]

think the officer acted reasonably under federal law then I don’t think you can say

that the officer shot Mr. Foskey for no reason which would kill the Georgia claim.”

The district court concluded that Merritt was entitled to official immunity under

Georgia law because he acted reasonably and without “actual malice” in this case.

This appeal followed.

                         III. ARGUMENTS ON APPEAL

      On appeal, Varnadore argues that summary judgment was inappropriate

because a reasonable jury could find that Merritt’s use of deadly force against

Foskey was not objectively reasonable under the circumstances. In making this

argument, Varnadore points to the fact that Merritt had interacted with Foskey

before and that Foskey had not acted aggressively toward Merritt during those

encounters. She also points out that the 911 operator did not inform Merritt that



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Foskey was armed and that Merritt did not ask whether he might be. She notes that

Merritt had an unobstructed view of Foskey in broad daylight, and that he should

have clearly seen that Foskey did not have a gun in his hand. She argues that

Merritt was protected by his patrol car when he shot, and that it was not necessarily

reasonable for Merritt to think Foskey was capable of shooting him given the fact

that Foskey was under the influence of narcotics. She contends Foskey was not

resisting arrest and, even if he were, Merritt never gave a warning that he planned

to use deadly force. In sum, Varnadore insists that Merritt’s subjective belief that

Foskey had a gun and might shoot him is insufficient to establish probable cause

for the use of deadly force. As was the case before the district court, Varnadore

agrees that her state law claims should rise or fall with the federal § 1983 action.

      In response, Merritt argues that the district court correctly determined—and

the video evidence clearly shows—that his use of force was objectively reasonable.

He contends that Foskey would have appeared to be gravely dangerous to any

reasonable officer faced with the circumstances depicted in the video taken from

Merritt’s dashboard camera. In the alternative, Merritt argues that he is entitled to

qualified immunity because case law has not clearly established a bright-line rule

that would have put him on notice that his actions violated the Fourth Amendment.




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                         IV. STANDARD OF REVIEW

      We review de novo a district court’s grant of summary judgment, applying

the same legal standards as the district court. Stephens v. DeGiovanni, 852 F.3d

1298, 1313 (11th Cir. 2017). “Summary judgment is appropriate if the evidence

before the court demonstrates that ‘there is no genuine dispute of material fact and

that the moving party is entitled to judgment as a matter of law.’” Taylor v.

Hughes, 920 F.3d 729, 732 (11th Cir. 2019) (quoting Fed. R. Civ. P. 56(a)). In

determining whether summary judgment is appropriate, “we view all evidence and

make all reasonable inferences in favor of the party opposing summary judgment.”

Whatley v. CNA Ins. Cos., 189 F.3d 1310, 1313 (11th Cir. 1999). In cases

involving a qualified immunity defense, “this usually means adopting . . . the

plaintiff’s version of the facts.” Scott v. Harris, 550 U.S. 372, 378, 127 S. Ct.

1769, 1775 (2007). However, “[w]hen opposing parties tell two 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 purposes of

ruling on a motion for summary judgment.” Id. at 380, 127 S. Ct. at 1776. This is

especially the case when clear video evidence is in the record. Indeed, when there

are no allegations or indications that video evidence has been doctored, or that the

video shows something different than what actually happened, the Supreme Court




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has indicated that we should “view[] the facts in the light depicted by the

videotape.” Id. at 378, 380–81, 127 S. Ct. at 1775–76.

                                      V. DISCUSSION

       The district court did not err when it granted Merritt’s motion for summary

judgment because no reasonable jury could conclude that Merritt lacked an

objectively reasonable basis for using deadly force against Foskey. In the light of

the video evidence of Merritt’s brief but lethal encounter with Foskey on May 22,

2014, it is clear to us that any reasonable officer in Merritt’s position would have

viewed Foskey as an immediate and serious threat to his or her own safety.

       Qualified immunity protects “government officials performing discretionary

functions . . . from liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable

person would have known.”3 Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct.

2727, 2738 (1982). The qualified immunity defense balances “the need to hold

public officials accountable when they exercise power irresponsibly and the need

to shield officials from harassment, distraction, and liability when they perform

their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808,

815 (2009). This permits officials to perform their work without fear of liability,



       3
         There is no question in this case that Merritt was acting in his discretionary capacity as
a deputy sheriff when the challenged shooting occurred.


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protecting “all but the plainly incompetent or those who knowingly violate the

law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1096 (1986).

      Once asserted, a plaintiff must make two showings to overcome an official’s

qualified immunity defense. See Griffin Indus., Inc. v. Irvin, 496 F.3d 1189,

1199–1200 (11th Cir. 2007). The plaintiff must show (1) that the official violated

a constitutional right, and (2) that the right was “clearly established.” Id. This

Court is now “permitted to exercise [its] sound discretion in deciding which of the

two prongs of the qualified immunity analysis should be addressed first in light of

the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236, 129 S.

Ct. at 818. Because we conclude that Merritt did not violate Foskey’s Fourth

Amendment rights in this case, it necessarily follows that there was no violation of

a clearly established right.

      The Fourth Amendment provides a “right of the people to be secure in their

persons . . . against unreasonable searches and seizures.” U.S. Const. amend. IV.

This “freedom from unreasonable searches and seizures encompasses the right to

be free from excessive force during the course of a criminal apprehension.” Oliver

v. Fiorino, 586 F.3d 898, 905 (11th Cir. 2009) (citing Graham v. Connor, 490 U.S.

386, 394–95, 109 S. Ct. 1865 (1989)); Mercado v. City of Orlando, 407 F.3d 1152,

1156 (11th Cir. 2005)). Thus, all claims that a law enforcement official has used

excessive force in apprehending a suspect are analyzed under the Fourth



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Amendment’s “objective reasonableness” standard, meaning that the question we

must ask “is whether the officer[’s] actions are ‘objectively reasonable’ in light of

the facts and circumstances confronting them, without regard to their underlying

intent or motivation.” Graham, 490 U.S. at 397, 109 S. Ct. at 1872.

      The force used to affect the seizure “must be reasonably proportionate to the

need for that force.” Shaw v. City of Selma, 884 F.3d 1093, 1099 (11th Cir. 2018).

Three nonexclusive factors guide this totality-of-the-circumstances inquiry,

“including the severity of the crime at issue, whether the suspect poses an

immediate threat to the safety of the officer[] or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396,

109 S. Ct. at 1872. These three factors serve only as a guide, and it is not

necessary in all cases for an officer to show that all three factors weigh in his or her

favor to establish that the force ultimately used was reasonably proportionate to the

need for force. See Shaw, 884 F.3d at 1098–1100 & n.5 (noting that “[t]he

reasonableness of the shooting depends on the totality of the circumstances” and

concluding that, in a case involving a mentally ill victim wielding a hatchet, the

outcome of the appeal “turn[ed] on the second of these factors: presence of an

imminent threat”).

      As in Shaw, the outcome of this appeal turns on the presence of an

immediate threat. In focusing our inquiry on the second of the three factors



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outlined above (i.e., the immediacy of a serious threat), the issue we are called

upon to determine is whether an officer in Merritt’s position reasonably could have

believed that Foskey posed a serious threat when he ignored Merritt’s orders to

show his hands and instead reached around inside his truck, jumped out of his

truck, and then quickly raised his right hand toward Merritt and away from his

beltline while holding unidentified objects. Under the totality of the circumstances

of this case—and as evidenced by the clear video evidence from Merritt’s

dashboard camera—we hold that a reasonable officer in Merritt’s position

reasonably could have believed that Foskey posed a serious threat to his or her own

safety.

      To begin, Foskey drove erratically during a brief traffic pursuit and brought

his truck to a sudden and forceful stop. He quickly exited his vehicle and stared in

Merritt’s direction. Ignoring Merritt’s orders to show his hands, Foskey reached

around inside his truck and appeared to be grasping for something. He also

appeared to open the center console inside his truck. By this time, 911 operators

had also informed Merritt that Foskey was under the influence and suicidal.

Although it may be that Merritt would not have had an objectively reasonable basis

for using deadly force against Foskey at this moment in time (i.e., before he




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jumped out of his truck),4 what happens next is, in the light of everything that

came before, most critical to our disposition of this appeal.

       Next, the video clearly shows Foskey abruptly jumping out of his truck,

facing in the direction of Merritt’s patrol car, and quickly raising his right arm

toward Merritt and away from his beltline as if pulling a gun from his waist.

Importantly, Varnadore does not argue on appeal that the video taken from

Merritt’s dashboard camera has been doctored, or that the video shows something

other than what actually happened. Instead, she argues that Merritt should not

have fired because he had previously interacted with Foskey; or because Merritt

could see clearly; or because with a couple more steps, Merritt could have been

safe behind the patrol car; or because Foskey was under the influence and could

not have fired an accurate shot even if he had possessed a gun; or because Merritt

did not ask the 911 operator if Foskey was armed. Although one or more of these

observations may be true, “[s]peculation does not create a genuine issue of fact”

for purposes of summary judgment. Cordoba v. Dillard’s, Inc., 419 F.3d 1169,

1181 (11th Cir. 2005). Moreover, in the context of cases involving allegations of

excessive force, after-the-fact “[r]econsideration will nearly always reveal that

something different could have been done if the officer knew the future before it



       4
         We expressly decline to decide whether or not that is true because Foskey’s behavior in
the seconds that follow his reaching around inside the truck informs our decision in this case.


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occurred.” Carr v. Tatangelo, 338 F.3d 1259, 1270 (11th Cir. 2003). “This is what

we mean when we say we refuse to second-guess the officer.” Id. Thus, in the

light of the clear video evidence of Foskey’s behavior in the minutes (and in

particular the seconds) before Merritt shot him, Varnadore’s arguments are

insufficient to create a genuine issue of material fact that would defeat Merritt’s

motion for summary judgment. The video evidence makes it clear to us that no

reasonable jury could conclude that Merritt lacked an objectively reasonable basis

for believing that Foskey posed a serious threat to his own safety, and the district

court did not err in granting Merritt’s motion for summary judgment on that basis.5

       This conclusion is not altered by the fact that Foskey turned out to be

unarmed. As noted above, “[i]n cases involving excessive force claims it is

doctrinal gospel that we do not view an officer’s actions with the 20/20 vision of

hindsight.” Shaw, 884 F.3d at 1100 (citation and internal quotation marks

omitted). Courts considering an alleged use of excessive force must also consider


       5
          Although it is not necessary in this case to weigh all three of the Graham factors to
decide in Merritt’s favor, see Shaw, 884 F.3d at 1099 n.5, we note that Foskey’s refusal to
comply with Merritt’s orders to show his hands further weighs in favor of affirming the district
court’s decision. Under the circumstances, Foskey’s refusal to show his hands probably means
that he was “actively resisting arrest” when Merritt shot him. See Graham, 490 U.S. at 396, 109
S. Ct. at 1872. But even if he was not resisting arrest as a matter of law, the particular manner in
which Foskey refused to cooperate with Merritt is crucial to our reasonableness analysis. Foskey
did not simply refuse Merritt’s orders to show his hands. Instead, he reached inside the cabin of
his truck, unexpectedly jumped out of the cabin, and quickly raised his hand toward Merritt
while holding something in his hand. Thus, although we focus our attention primarily on
Foskey’s behavior as evidenced by the video taken from Merritt’s dashboard camera, it is not
entirely irrelevant to our objective reasonableness inquiry that Foskey acted in such a manner
despite Merritt’s orders to show his hands.


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that officers are often called upon to act “in tense, uncertain, and rapidly evolving

situations.” Id. (citation and internal quotation marks omitted). Given these

realities, this Court has held that an officer who uses deadly force may still be

entitled to qualified immunity even if he mistakenly believed the suspect was

armed so long as that belief was reasonable under the circumstances. See, e.g.,

Penley v. Eslinger, 605 F.3d 843, 846, 851–54 (11th Cir. 2010) (affirming district

court’s grant of qualified immunity to officer who shot and killed fifteen-year-old

student after student took classmate hostage and later pointed what turned out to be

a toy gun at the officer during a standoff inside the school).

      Thus, even though we now know that Foskey had retrieved a CD case and

two pieces of paper from inside the cabin of his truck—and that he was raising

those items (and not a gun) from his beltline and toward Merritt after exiting his

truck—the relevant inquiry remains whether, even though he did not actually have

a gun, would Foskey “have appeared to reasonable police officers to have been

gravely dangerous[?]” Id. at 851. Our precedents—together with Merritt’s

dashboard camera video—make it clear that reasonable police officers would have

viewed Foskey as gravely dangerous given his behavior before and during the

twenty-second roadside encounter.

      We also decline to disturb the district court’s decision on grounds that

Merritt did not give Foskey a warning that he planned to use deadly force. Even



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assuming that Merritt’s orders demanding that Foskey show his hands (the second

of which was preceded by Merritt aiming his handgun at Foskey) would not have

been sufficient to warn Foskey that Merritt intended use deadly force, this Court

has expressly “decline[d] . . . to fashion an inflexible rule that, in order to avoid

civil liability, an officer must always warn his suspect before firing—particularly

where, as here, such a warning might easily have cost the officer his life.” Carr,

338 F.3d at 1269 n.19 (citation omitted). Moreover, the facts of this case are easily

distinguishable from the facts in Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694

(1985) (requiring a warning before deadly force is used under certain

circumstances), which involved a fleeing, unarmed suspect who did not reasonably

appear to pose an immediate threat to the officer. See Penley, 605 F.3d at 854 n.6

(distinguishing Garner in the context of a case, more like this one, where the

suspect “posed a real threat to the lives of officers”). Even assuming arguendo that

Garner is factually similar to and thus governs this case, we would still affirm the

district court because it would not have been “feasible” for Merritt to warn that he

intended to use deadly force against Foskey in the split-second after Foskey

jumped from his truck.




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                                     VI. CONCLUSION

       In the light of all of the attendant circumstances of this case, as they might

be viewed by a reasonable officer in Merritt’s position, 6 we conclude that Merritt

did not use excessive force in violation of Foskey’s Fourth Amendment rights. In

reaching this conclusion, we emphasize the manner in which Foskey initially

exited his truck (after being pursued at high speeds), then reached around inside

the truck (despite orders to show his hands), and then quickly jumped out of the

truck (raising several unidentified objects from his beltline toward Merritt as if

pulling a gun from his waist). In addition to the clear video evidence, we further

consider that an officer in Merritt’s position would have witnessed all of this

behavior knowing that Foskey was under the influence and suicidal. Taken

together, these facts clearly indicate that a reasonable officer would have been

justified in believing that Foskey posed an immediate and serious threat to his or

her own safety. Because he did not violate Foskey’s Fourth Amendment rights,

Merritt is entitled to qualified immunity. 7 The order of the district court granting



       6
           To be clear, we do not decide in Merritt’s favor because of his testimony that he “just
thought [Foskey] had a gun.” Rather, we decide in Merritt’s favor because, based on the record
before us, it was objectively reasonable for an officer in Merritt’s situation to believe that Foskey
had a gun and thus posed an immediate and serious threat to his safety.
         7
           Given this conclusion, and given Varnadore’s admissions before the district court and
this Court that the federal and state law claims should rise or fall together, we also hold that the
district court did not err when it granted Merritt’s motion for summary judgment with respect to
the state law claims asserted in this case.



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Merritt’s motion for summary judgment and dismissing Varnadore’s claims is

therefore

       AFFIRMED. 8




       8
         Any other arguments asserted on appeal by Varnadore are rejected without need for
further discussion.


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