                                                       [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                   FILED
                        ________________________       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                           September 15, 2006
                             No. 06-10210                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                D. C. Docket No. 04-00298-CV-3-J-32HTS

MICHAEL LEE MONGEAU,


                                                          Plaintiff-Appellant,

                                 versus


JACKSONVILLE SHERIFF’S OFFICE, et al.,

                                                                 Defendants,

S. M. FARRIS, Ofc,
D. B. EDMONDS, Ofc,
M.E. GORSAGE, Ofc,


                                                       Defendants-Appellees.

                       ________________________

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

                          (September 15, 2006)
Before BLACK, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

      Michael Lee Mongeau, proceeding pro se, appeals the district court’s order

granting final summary judgment on behalf of Jacksonville Sheriff’s officers,

Farris, Edmonds, and Gorsage. We affirm.

                                          I.

      On September 8, 2003, Michael Mongeau, was arrested following two

separate high speed police chases. The first chase began that morning when

Mongeau ignored a patrolling officer’s attempts to pull him over. Several other

officers joined the pursuit which lasted for over two hours. Mongeau eventually

evaded the officers by parking the car and entering a local mall. The second chase

began several hours later when Mongeau left the mall. The plaintiff was far more

reckless during this second pursuit, running red lights and entering the highway

going the wrong direction. The police used “stop-sticks” to end the chase, and

Mongeau lost control of the car and crashed into a light pole.

      Several officers approached the immobilized vehicle with guns drawn, and

Mongeau held his hands up in plain view. The officers instructed Mongeau to get

out of the car, but he told them that he was stuck because his seatbelt was jammed

in the locked position. Mongeau was semi-unconscious and in a state of shock



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from the accident and was therefore slow in responding to the officers’

instructions. Further, he claims that he could not keep his hands raised as ordered

because of his injuries. When Mongeau lowered his hands and failed to exit the

vehicle, Officer Gorsage released a police dog through the window. Mongeau

protested and fought the dog. Gorsage recalled the canine, and the officers again

told Mongeau to get out of the car and raise his hands. When he failed to comply,

Sergeant White approached the vehicle and sprayed Mongeau with pepper spray to

incapacitate him. Nonetheless, Mongeau still failed to raise his hands, and the dog

was deployed a second time. Officer Farris was present but took no steps to

prevent this second attack. The dog was called off when Mongeau again put his

hands up. Subsequently, several officers reached through the passenger window

and pulled Mongeau out of the car. They slammed him onto the ground, and beat

his head and back in an attempt to subdue him. They eventually were able to

handcuff him. Officer Edmonds then placed his knee on Mongeau’s upper back

and neck to keep him on the ground, even though he was no longer struggling.

The entire incident was captured on videotape by a camera attached to one of the

pursuing officer’s patrol car.

      An ambulance arrived on the scene shortly after Mongeau was handcuffed,

and the paramedics cleaned his wounds. Officer Farris then drove him to the



                                          3
county jail, but upon arrival, Farris was instructed to first take Mongeau to the

hospital for treatment. After two hours at the hospital, Mongeau was charged with

felony fleeing or attempting to elude, grand theft auto, and reckless driving. The

state later dismissed the grand theft auto and reckless driving charges.

      Mongeau filed a lawsuit against all three officers, claiming that they

employed excessive force in his arrest in violation of 42 U.S.C. § 1983.

Specifically, he claimed that: 1) Farris failed to intervene when the police dog was

deployed for the second time; 2) Edmonds used excessive force in placing his knee

on Mongeau’s back when Mongeau was handcuffed on the ground; 3) Gorsage

used excessive force in deploying the canine twice; 4) all three officers had a

history of violating police procedures and receiving reprimands; 5) all three

officers failed to follow protocol; and 6) Mongeau suffered injuries from the dog

attack.

      Defendants Farris, Edmonds, and Gorsage responded by filing a motion for

summary judgment, raising qualified immunity as an affirmative defense. They

contended that they acted in good faith, within the scope of their duties, and in a

manner they reasonably believed to be consistent with the law and procedures of

the Jacksonville Sheriff’s Office. Even if Mongeau could establish a viable

constitutional violation, the officers asserted that they are nonetheless protected by



                                           4
qualified immunity.

      The district court entered an order on December 21, 2005, granting the

defendants’ motion for summary judgment as to all claims. The court found that

the videotape of the incident demonstrated that the arrest occurred quickly and

efficiently and that there was no evidence of excessive force. Furthermore, the

court held that the officers’ actions were objectively reasonable in light of the

totality of the circumstances and that the officers were justified in fearing Mongeau

as a real threat. This appeal followed.

                                          II.

      We review a grant of summary judgment de novo, resolving any genuine

dispute of material fact in favor of the nonmoving party. Zipperer v. City of Fort

Myers, 41 F.3d 619, 622 (11th Cir. 1995). Summary judgment is appropriate “if

the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). We review a denial of sanctions under an abuse of

discretion standard. Phipps v. Blakeney, 8 F.3d 788, 790 (11th Cir. 1993).




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                                         III.

                                          A.

      Mongeau contends that genuine issues of material fact exist as to whether

the force employed by the officers was excessive in violation of the Fourth

Amendment. He claims that the record demonstrates factual conflicts and that he

was trying to cooperate with the officers but was limited by his injuries.

      The officers respond that the evidence, even as construed in favor of the

plaintiff, demonstrates that their actions were reasonable given the facts. Looking

at the totality of the circumstances and the facts known to them, the officers argue

that they were justified in believing that Mongeau was dangerous and willing to

take any risk to elude capture.

      In dealing with a Fourth Amendment excessive force claim, the question

becomes “whether the officers’ actions are ‘objectively reasonable’ in light of the

facts and circumstances confronting them,” taking into account that “police

officers are often forced to make split-second judgments---in circumstances that

are tense, uncertain, and rapidly evolving---about the amount of force that is

necessary in a particular situation.” Graham v. Connor, 490 U.S. 386, 396–97, 109

S. Ct. 1865, 1872 (1989). This reasonableness inquiry “must be judged from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision



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of hindsight.” Id. at 396, 109 S. Ct. at 1872. We have held that:

      [W]e are not to view the matter as judges from the comfort and safety
      of our chambers, fearful of nothing more threatening than the
      occasional paper cut as we read a cold record accounting of what
      turned out to be the facts. We must see the situation through the eyes
      of the officer on the scene who is hampered by incomplete
      information and forced to make a split-second decision between action
      and inaction in circumstances where inaction could prove fatal.

Crosby v. Monroe County, 394 F.3d 1328, 1333–34 (11th Cir. 2004).

      Additionally, it has been “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.” Graham, 490 U.S. 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 safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight.” Id.

      Thus, in determining whether the officers’ conduct in this case was

reasonable, we are to consider the totality of the circumstances as viewed by the

officers in the heat of the moment, bearing in mind these four significant facts.

First, Mongeau was charged with three serious crimes: grand theft auto, reckless

driving, and felony fleeing or attempting to elude. Second, Mongeau’s



                                           7
recklessness in evading capture clearly posed great danger to both the officers

pursuing him and numerous civilians. He ran traffic lights, sped, and even entered

the highway going the wrong direction. This conduct reasonably led the officers to

believe that Mongeau had little regard for his own life or others. They justifiably

feared that he might be armed. Third, Mongeau resisted arrest by refusing to get

out of the car and repeatedly refusing to raise his hands, which reasonably could

have led the officers to believe that he might reach for a weapon. Fourth, Mongeau

was a flight risk, as evidenced by the high speed chase and his refusal to cooperate

with the officers. The totality of the circumstances, including these four facts,

establish that the conduct of the officers in restraining and incapacitating Mongeau

was not excessive.

                                          1.

      Specifically, the use of the canine was objectively reasonable because

Mongeau admitted that he responded slowly to the officers’ orders to show his

hands and failed to keep his hands raised. Based on his prior dangerous conduct,

the officers reasonably believed that Mongeau might be reaching for a weapon or

about to flee each time he dropped his hands. The dog was used only briefly when

Mongeau failed to comply with the officers’ orders. Mongeau admits that the dog

was called off when he followed the orders. Both the first and second deployment



                                           8
of the dog were reasonable in the circumstances. Because the use of the dog was

reasonable, Officer Farris’ failure to intervene to prevent that use was also

reasonable.

      Mongeau cites Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994), to support his

contention that the use of the police dog was unreasonable. The Chew case is

distinguishable from this one. First, the dog used in Chew was sent to locate a

concealed suspect and was out of the handler’s sight. Id. at 1441. As a result, the

handler could not stop the dog’s attack. Id. By contrast, in this case, the handler

was present and the dog was instantly called off once Mongeau complied with the

officers’ orders by raising his hands. Second, in Chew there was no basis for

concern that the suspect was armed or dangerous. Id. at 1442. In this case, the

officers reasonably feared that Mongeau might have a weapon and was willing to

go to desperate extremes to escape. Third, the officers in Chew had ample time to

consider their tactics in apprehending the suspect, id. at 1443, while the officers in

our case had to make high risk, split-second decisions. Whatever we might decide

if the facts of Chew were before us, they are not. Under the facts of this case the

deployments of the dog to prevent Mongeau from obtaining a weapon or fleeing

were reasonable under the circumstances.




                                           9
                                          2.

      Additionally, Edmonds placement of his knee on Mongeau’s back to subdue

him was objectively reasonable given Mongeau’s previous resistance and risk of

flight. Some degree of physical force is necessary in making an arrest where the

suspect has refused to comply with the officers’ orders. See Graham 490 U.S. 396,

109 S. Ct. at 1871–72. The videotape of the arrest shows that once Mongeau was

handcuffed the officers stopped using force against him, except that which was

necessary to hold him down and ensure that he did not flee.

                                          3.

      Finally, Mongeau contends that the defendants failed to follow proper

procedure both in using pepper spray and in failing to provide medical attention

after use. First, the use of pepper spray here was objectively reasonable for the

same reasons that it was reasonable to use the dog and to hold Mongeau down after

he was handcuffed. The defendants had a reasonable fear that Mongeau was armed

and dangerous, and they were justified in incapacitating him before removing him

from the vehicle and in holding him down once he was outside the vehicle.

Second, Mongeau’s claims that the officers failed to follow protocol in providing

immediate medical assistance are unfounded. The Operational Order of the

Jacksonville Sheriff’s Office mandates that medical assistance be provided “as



                                          10
soon as practical” after a chemical weapon is used. Mongeau admitted in his

deposition that an ambulance arrived shortly after he was removed from the car

and that paramedics cleaned his wounds. Additionally, the videotape shows that

emergency personnel were on the scene within twenty minutes of Mongeau’s

removal from the vehicle. Thus, Mongeau’s claim that the district court failed to

consider whether the officers’ properly adhered to pepper spray procedure is

without merit.

                                         B.

       Mongeau asserts that the officers are not entitled to qualified immunity

because they were not acting within the scope of their discretionary authority. As

we have noted, no constitutional violation occurred under the present facts, so we

need not reach the issue of whether they would be entitled to qualified immunity if

a violation had occurred.

                                         C.

      Finally, Mongeau contends that the defendants failed to comply with his

discovery requests for photographs and the transcript of the deposition of an

unknown defense witness. He claims that without these materials he could not

sufficiently prepare his case. He calls for a reversal of the grant of summary

judgment, an order compelling the requested discovery, and sanctions.



                                         11
      The record reflects that the officers responded in a timely manner to the

court’s discovery order. They provided Mongeau with photographs, videotapes,

and final action reports, and appropriately objected to his discovery requests that

were vague or overly broad. The defendants turned over everything in their

possession, including more than 1,200 pages of documents. There was no

discovery violation and no basis for sanctions.

                                          D.

      To the extent that Mongeau is suing the defendants in their official capacity,

the district court properly ruled that any such claim fails, because Mongeau did not

present any evidence of a custom or policy that deprived him of his constitutional

rights. He is not challenging the procedures themselves, but rather is alleging that

the defendants failed to properly follow those procedures. Thus, no valid official

capacity claim exists.

      AFFIRMED.




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