                                                               [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                              FOR THE ELEVENTH CIRCUIT           FILED
                               ________________________ U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                                                  JAN 19, 2011
                                     No. 09-16472
                                                                   JOHN LEY
                                 Non-Argument Calendar              CLERK
                               ________________________

                              D.C. Docket No. 07-00008-CV-S

EDDIE IRA SANDERS, SR.,
as administrator of the estate
of Eddie Ira Sanders, Jr. deceased,


lllllllllllllllllllll                                           Plaintiff-Appellant,

                                         versus


CITY OF DOTHAN,
MAURICE EGGLESTON,
Officer, in his individual capacity,


                                                              Defendants-Appellees,


JOHN POWELL, in his individual
and official capacity as Chief of
Police for the City of Dothan, et al.,

                                                                        Defendants.
                                ________________________

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

                                      (January 19, 2011)

Before EDMONDSON, CARNES, and MARTIN, Circuit Judges.

PER CURIAM:

       This case arises out of the death of Eddie Ira Sanders Jr. (Sanders) from

acute cocaine intoxication after he lost consciousness while being transported in

the back of a police car following his arrest. Eddie Sanders Sr. (Plaintiff), the

administrator of Sanders’ estate, filed suit under 42 U.S.C. § 1983 contending that

Officer Maurice Eggleston, who arrested and transported Sanders, violated

Sanders’ constitutional rights. Specifically, Plaintiff argues that Eggleston (1) was

deliberately indifferent to Sanders’ Fourteenth Amendment rights when he took

Sanders to the police station instead of the hospital, and (2) used excessive force

in violation of the Fourth Amendment when he tasered Sanders.1 The district

       1
         To the extent that Plaintiff had a claim against the City of Dothan for deliberate
indifference to Sanders’ Fourteenth Amendment rights it is abandoned because Plaintiff’s
argument focuses exclusively on Eggleston and only mentions the City of Dothan in passing.
See United States v. Jernigan, 341 F.3d 1273, 1283 n. 8 (11th Cir. 2003) (“Under our caselaw, a
party seeking to raise a claim or issue on appeal must plainly and prominently so indicate.
Otherwise, the issue—even if properly preserved at trial—will be considered abandoned.”).
Additionally, to the extent that Plaintiff argues a claim against the City of Dothan for the use of
excessive force, he failed to preserve that claim by raising it in the district court. See Crawford

                                                 2
court granted on qualified immunity grounds Eggleston’s summary judgment

motion on both counts. This is Plaintiff’s appeal.

                                              I.

       The district court adequately set forth the facts of this case. Sanders v. City

of Dothan, 671 F. Supp. 2d 1263 (M.D. Ala. 2009). For purposes of this appeal,

we accept the district court’s factfindings, supplementing them with additional

evidentiary findings of our own from the record where necessary. See Cottrell v.

Caldwell, 85 F.3d 1480, 1486 (11th Cir. 1996) (“[W]e have discretion to accept

the district court’s findings, if they are adequate.”). Viewing the evidence in the

light most favorable to the plaintiff, the district court found:

       On the evening of August 24, 2005, Eggleston, a police officer assigned to
       the Dothan Police Department’s patrol division, attempted to pull over
       Sanders Jr. for driving a car with a burnt-out tag light. But Sanders Jr. did
       not stop, so Eggleston turned on his patrol car’s emergency lights and siren
       and gave chase. After a two-minute pursuit, in which Sanders Jr. violated
       multiple traffic laws and almost caused a collision, Sanders Jr. finally pulled
       his car over to the side of the road.

       Eggleston parked, exited his patrol car, and started to walk toward Sanders
       Jr.’s car. But Sanders Jr., a large man who stood over 6 feet tall and
       weighed more than 400 pounds, jumped out of his car as well. Eggleston
       ordered Sanders Jr. to show his hands and get on the ground. Sanders Jr.
       did not get on the ground. Instead, he turned around, went back to his car,
       knelt down in front of the drivers-side door, and reached into the car. After
       several seconds, Sanders Jr. put his hands above his head, stood back up,


v. Comm’r of Soc. Sec., 363 F.3d 1155, 1161 (11th Cir. 2004).

                                              3
and turned around to face Eggleston. He turned his back on Eggleston for a
second time and, after a few seconds, put his hands on top of his car.
Sanders Jr. then turned to face Eggleston, took his hands off of the top of
his car, and started to walk towards Eggleston. Because Eggleston did not
know what Sanders Jr. had reached for in the car, he immediately retreated
behind his patrol car, drew his firearm, and again ordered Sanders Jr. to get
on the ground. This time, Sanders Jr. complied, and after switching out the
firearm for a taser, Eggleston handcuffed Sanders Jr. in front of the patrol
car.

Eggleston then examined the inside of Sanders Jr.’s car and noticed a
substance that he suspected was cocaine. After radioing for a K-9 unit to
come to the scene to investigate, Eggleston returned to Sanders Jr. and
helped him to his feet. Eggleston asked Sanders Jr. if he had any weapons
or drugs on his person. Sanders Jr. said he did not. Eggleston asked him if
he had any weapons or drugs in his car. Again, he said he did not. During
this colloquy, Sanders Jr. talked normally and did not appear to have
anything in his mouth. Eggleston also conducted a pat-down search before
putting Sanders Jr. in the back of the patrol car. Eggleston did not find any
weapons or drugs on him.

Other police officers arrived on the scene. They too suspected that the
substance in Sanders Jr.’s car was “rock” cocaine. One of these officers,
Ronald Hall, leaned into Eggleston’s patrol car to interrogate Sanders Jr.
During the interrogation, Hall noticed that Sanders Jr. had several white
flakes in his beard, and he pointed them out to Eggleston. Both officers
knew from experience that suspects often conceal contraband and other
evidence in their mouths. Consequently, both Hall and Eggleston ordered
Sanders Jr. to open his mouth several times. Sanders Jr. opened his mouth,
but he refused to give either officer an unobstructed look inside. Each time,
he either refused to lift his tongue, looked down, or turned his head away
from the officers.

Hall then retrieved a drug swab from his patrol car and wiped off some of
the white flakes from Sanders Jr.’s beard. He took them back to his patrol
car to test them. In the meantime, Eggleston, growing impatient with
Sanders Jr.’s continued disobedience, [and based Eggleston’s belief that

                                   4
Sanders Jr. “attempted” to swallow something, he] leaned into the patrol
car, drew his taser, removed the taser cartridge containing the probes, and
told Sanders Jr. that if he did not comply with the order to open his mouth,
he would use the taser on him. Still, Sanders Jr. refused to cooperate, and
after giving Sanders Jr. several more warnings and ample time to comply,
Eggleston used his taser on Sanders Jr. in drive-stun mode for
approximately one to two seconds. Sanders Jr. immediately opened his
mouth and lifted his tongue so that Eggleston could see inside. Eggleston
did not see anything in Sanders Jr.’s mouth.

Hall reported back that the white flakes in Sanders Jr.’s beard had tested
positive for cocaine. The officers asked Sanders Jr. if [he] had swallowed
cocaine. He denied swallowing cocaine. The officers again asked Sanders
Jr. if he had swallowed cocaine, pointing out that they needed to know for
his safety and because they would need to take him to get his stomach
pumped if he had swallowed cocaine. Sanders Jr. denied swallowing
cocaine for a second time. The officers tried again, this time telling Sanders
Jr. that they knew he had swallowed cocaine and that they were going to
take him to get his stomach pumped. Sanders Jr. denied swallowing cocaine
for a third time, and he pleaded with the officers not to take him to get his
stomach pumped. By then, a K-9 unit had arrived on the scene and
identified Sanders Jr.’s car as containing illicit drugs. Eggleston and Hall
discussed whether it would be a good idea to take Sanders Jr. to the hospital
to get his stomach pumped because they did not know how much cocaine he
had swallowed. They never reached a decision.

Eggleston went back to Sanders Jr. and asked him several routine questions
in order to fill out a few police reports. All of the officers on the scene who
interacted with Sanders Jr. agree that he showed no signs of impairment or
intoxication. His eyes were not dilated, his speech was not slurred, and he
did not appear to be agitated. He was alert, “oriented,” and able to provide
identity and other basic information to Eggleston, including locations, dates,
and numbers. He did not complain of medical problems, show signs of
medical distress, or request medical attention or treatment.

Therefore, rather than take Sanders Jr. to the hospital to get his stomach
pumped, Eggleston drove Sanders Jr. the two blocks to the Dothan City Jail

                                   5
      for booking. About one hour had passed from the time Eggleston first
      stopped Sanders Jr. to the time Eggleston drove Sanders Jr. to the jail.
      During the short drive to the jail, Eggleston and Sanders Jr. were talking to
      each other, and Eggleston did not think that anything was wrong. But when
      they arrived at the jail’s sally port, Eggleston noticed that Sanders Jr. was
      dazed and appeared to be in some kind of medical distress. Eggleston told
      the jail sergeant to call the paramedics, moved Sanders Jr. out of the patrol
      car, and took off the handcuffs. When the paramedics arrived about seven
      to ten minutes later, Eggleston informed them that he suspected that Sanders
      Jr. had taken drugs. The paramedics then transported Sanders Jr. to the
      hospital, where he died a few days later. The autopsy reports that the cause
      of Sanders Jr.’s death was “acute cocaine intoxication.”

Sanders, 671 F. Supp. 2d at 1265–67 (footnotes omitted).

                                         II.

      We review de novo the district court’s grant of summary judgment. See

Cambell v. Sikes, 169 F.3d 1353, 1361 (11th Cir. 1999). “We apply the same

legal standards as the district court and view all facts and reasonable inferences in

the light most favorable to the nonmoving party.” Gish v. Thomas, 516 F.3d 952,

954 (11th Cir. 2008).

                                         A.

      Plaintiff contends that Eggleston violated Sanders’ Fourteenth Amendment

rights by acting with deliberate indifference to Sanders’ serious medical condition

while he was in custody. “To prevail, Plaintiff must prove both an objectively

serious medical need and that a defendant acted with deliberate indifference to that



                                          6
need.” Burnette v. Taylor, 533 F.3d 1325, 1330 (11th Cir. 2008). “This Court has

defined a ‘serious medical need’ as one that is diagnosed by a physician as

requiring treatment or one that is so obvious that a lay person would recognize the

need for medical treatment.” Id. (quoting Farrow v. West, 320 F.3d 1235, 1243

(11th Cir. 2003)). Because Plaintiff does not allege that Sanders was ever seen by

a physician, he must establish that Sanders’ medical need was so obvious that a lay

person in Eggleston’s position would recognize the need for treatment. Id.

        To establish deliberate indifference, Plaintiff must show that Eggleston had

“(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3)

by conduct that is more than gross negligence.” Bozeman, 422 F.3d at 1272 (11th

Cir. 2005) (alterations omitted). He must show that Eggleston “was both aware of

facts from which the inference could be drawn that a substantial risk of serious

harm exists, and must also have drawn the inference.” Burnette, 533 F.3d at 1330

(citations, quotation marks, and alterations omitted). “[I]mputed or collective

knowledge cannot serve as the basis for a claim of deliberate indifference.” Id. at

1331.

        Plaintiff has failed to provide evidence that Eggleston was aware that

Sanders was at substantial risk of serious harm due to a serious medical need.

Even if Eggleston was aware that Sanders had swallowed some amount of cocaine,

                                          7
there is no evidence that he was aware that Sanders had swallowed an amount

large enough to put him at serious risk of harm. See id. at 1333 (“The Constitution

does not require an arresting police officer or jail official to seek medical attention

for every arrestee or inmate who appears to be affected by drugs or alcohol.”).

Plaintiff argues that Eggleston’s threat that he would have Sanders’ stomach

pumped provides such evidence. This statement—to which Sanders responded by

denying he had swallowed cocaine and pleading not to have his stomach

pumped—does not show that Eggleston was aware that Sanders had swallowed

enough cocaine to put him at serious risk of harm. See id. Rather, the evidence, in

the light most favorable to the Plaintiff, shows that Eggleston was not aware that

Sanders was at substantial risk of harm; not only did Sanders repeatedly say he

had not swallowed any drugs and that he did not want to be taken to the hospital,

but he was also alert, talked normally, responded to questions by providing basic

personal information, did not complain of any medical problems, and had no other

signs of being impaired or intoxicated. We add that it is by no means clear that in

the face of Sanders’ denials and apparently normal behavior Eggleston could have

had Sanders’ stomach pumped against his will, even if Eggleston had attempted to

do so. Plaintiff simply has not met his burden of showing that there is a general




                                           8
issue of material fact about whether Eggleston was deliberately indifferent to

Sanders’ serious medical need.

                                          B.

      Plaintiff also contends that Eggleston violated Sanders’ Fourth Amendment

rights by using excessive force when Eggleston tasered Sanders. “Qualified

immunity protects municipal officers from liability in § 1983 actions as long ‘as

their conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.’” Lewis v. City of West Palm

Beach, Florida, 561 F.3d 1288, 1291 (11th Cir. 2009) (quoting Harlow v.

Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738 (1982)). “To receive

qualified immunity, the officer must first show that he acted within his

discretionary authority.” It is undisputed that Eggleston was acting within his

discretionary authority.

      The burden then shifts to Plaintiff to show that qualified immunity should

not apply. Id. Even if Plaintiff can show that Eggleston’s actions amounted to a

constitutional violation, “if the violated right was not clearly established, qualified

immunity still applies.” Id. “A right may be clearly established for qualified

immunity purposes in one of three ways: (1) case law with indistinguishable facts

clearly establishing the constitutional right; (2) a broad statement of principle

                                           9
within the Constitution, statute, or case law that clearly establishes a constitutional

right; or (3) conduct so egregious that a constitutional right was clearly violated,

even in the total absence of case law.” Id. at 1291–92 (citations omitted).

      Plaintiff argues that because Sanders was handcuffed and in the back of the

police car, Eggleston violated a clearly established constitutional right by tasering

him. However, none of the ways of defeating qualified immunity apply here.

There is no case law with facts indistinguishable from the present case clearly

establishing a constitutional right not to be tasered in these circumstances.

Plaintiff does not dispute that Eggleston tasered Sanders in furtherance of the

legitimate law-enforcement activity of searching for contraband in Sanders’ mouth

to prevent him from possibly destroying it by swallowing the contraband. It is not

clearly established that a police officer is prohibited from momentarily tasering an

uncooperative handcuffed arrestee who—after multiple warnings—refuses to

comply with that justifiable law-enforcement objective. This law-enforcement

conduct is not so clearly in violation of constitutional rights that qualified

immunity can be denied without a decision on point. Because the right that

Plaintiff alleged that Eggleston violated is not clearly established, Eggleston is

entitled to qualified immunity on the claim of excessive force.

      AFFIRMED.

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