              Case: 12-13289     Date Filed: 02/25/2013   Page: 1 of 5

                                                              [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 12-13289
                             Non-Argument Calendar
                           ________________________

                        D.C. Docket No. 0:11-cv-62627-JIC


ANTHONY BROWN,

                                                                 Plaintiff-Appellant,

                                       versus

OFFICER JOSEPH CALICCHIO,
OFFICER WILLIE JONES,

                                                             Defendants-Appellees.

                           ________________________

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

                                (February 25, 2013)

Before BARKETT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:

      Anthony Brown, a prisoner proceeding pro se and in forma pauperis,

appeals the district court’s sua sponte dismissal, pursuant to 28 U.S.C.
               Case: 12-13289      Date Filed: 02/25/2013     Page: 2 of 5

§ 1915(e)(2)(B)(ii), of his 42 U.S.C. § 1983 complaint for failure to state a claim.

Brown’s complaint alleged that Officers Joseph Calicchio and Willie Jones

violated his constitutional rights through an illegal warrantless entry into his

apartment and the excessive use of force. In addition, however, Brown’s

complaint incorporates the entire police report of the incident submitted by Officer

Calicchio.

      We review de novo a district court’s sua sponte dismissal for failure to state

a claim under 28 U.S.C. § 1915(e)(2)(B)(ii) and view the allegations in the

complaint as true. Hughes v. Lott, 350 F.3d 1157, 1159-60 (11th Cir. 2003). For

proceedings in forma pauperis, “the court shall dismiss the case at any time if the

court determines that the action or appeal fails to state a claim on which relief may

be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). Dismissal under § 1915(e)(2)(B)(ii) is

governed by the same standard as a dismissal under Fed.R.Civ.P. 12(b)(6).

Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997). Dismissal for failure to

state a claim is appropriate if the facts as pleaded fail “to state a claim to relief that

is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,

1949, 173 L.Ed.2d 868 (2009) (quotation omitted) (involving a Rule 12(b)(6)

dismissal). Pro se pleadings are construed liberally. Hughes, 350 F.3d at 1160.

      Section 1983 provides a remedy for the deprivation of federal civil rights by

a person acting under color of state law. See 42 U.S.C. § 1983.


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                                I. Warrantless Entry

      On appeal, Brown argues that the officers illegally entered his apartment

without a warrant, his consent, or exigent circumstances. The Fourth Amendment

protects “[t]he right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. A

warrant is not required for police to enter a private dwelling when exigent

circumstances, including the need to protect or preserve life, mandate immediate

action. Bates v. Harvey, 518 F.3d 1233, 1245-46 (11th Cir. 2008).

      Here, we find the district court did not err in concluding that under the

totality of the circumstances as set forth in the Complaint incorporating the police

report, Officers Calicchio and Jones lawfully entered Brown’s residence without a

warrant because exigent circumstances existed. See Bates, 518 F.3d at 1245-46.

The police report indicates that Officers Calicchio and Jones were at Brown’s

residence to respond to his wife’s domestic violence complaint. She provided

officers with a key to the residence after Brown failed to respond to their requests

that he open the door. The door was chained from the inside and when Officer

Calicchio looked through the partially opened door, he saw Brown concealing an

unknown object in his right hand slightly behind his leg and yelling that he was not

going back to prison. Officer Calicchio told Brown that he only wanted to speak

with him, and asked him to show his hands but Brown first retreated and then re-


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emerged from the bathroom, keeping the right side of his body concealed behind

the bathroom wall. Concerned that Brown might have a weapon or hurt himself in

his agitated state, Officer Calicchio then broke the chain on the door and entered

the apartment. Under the circumstances relayed here, we cannot say the district

court clearly erred in finding that exigent circumstances existed, obviating the

requirement for a warrant to enter the apartment. 1

                                      II. Excessive Force

       When an “excessive force claim arises in the context of an arrest, . . . it is

most properly characterized as one invoking the protections of the Fourth

Amendment” and analyzed under the objective reasonableness standard. Graham

v. Connor, 490 U.S. 386, 394-95, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989).

The right to make a lawful arrest necessarily carries with it the right to use some

degree of physical coercion when force is necessary and proportional under the

facts and circumstances of each particular case. See id. at 396, 109 S.Ct. at 1871-

72. The amount of force that a police officer reasonably can use without being

excessive, however, depends on the totality of the circumstances, including “the

severity of the crime at issue, whether the suspect poses an immediate threat to the

       1
         Brown also argues for the first time on appeal that the officers exceeded the scope of his
wife’s consent when they broke the door’s chain to enter the apartment, but we will not consider
this argument. See Ramirez v. Sec’y, U.S. Dep’t of Transp., 686 F.3d 1239, 1249-50 (11th Cir.
2012) (explaining that we have discretion to decline to hear arguments not raised in the district
court). In any event, because exigent circumstances were present, the officers no longer required
consent to enter.


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safety of the officers or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight.” Id., 109 S.Ct. at 1872.

      In this case, the Officers discovered that the object Brown was concealing

was a large kitchen knife which he then held to his neck. The officers repeatedly

commanded him to drop the knife and when he began to work his way back to the

bathroom screaming that he was not going back to jail, the officers tasered him.

Brown argues that this constituted excessive force. We find no error in the district

court’s conclusion that under these circumstances, Officer Calicchio’s use of the

taser to subdue Brown was not objectively unreasonable and therefore, excessive

force was not used.

        AFFIRMED.




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