              Case: 18-10108     Date Filed: 11/13/2018    Page: 1 of 15


                                                            [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 18-10108
                              Non-Argument Calendar
                            ________________________

                     D.C. Docket No. 8:15-cv-02272-CEH-JSS


MARK J. LANDON,

                                                                 Plaintiff - Appellant,

                                        versus

CITY OF NORTH PORT,

                                                                Defendant - Appellee,

KEVIN VESPIA,
in his Official Capacity as Chief of Police of North Port Police, et al.,

                                                                            Defendants.

                            ________________________

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

                                (November 13, 2018)
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Before MARTIN, ROSENBAUM, and JILL PRYOR, Circuit Judges.

PER CURIAM:

       When North Port Police Department (“NPPD”) officers found Mark Landon

in the woods, he was naked except for his underwear, suicidal, bleeding heavily

from a self-inflicted wound, and laying on the ground. Concerned for their safety

due to reports that Landon possessed a knife, the officers decided not to approach

him. Instead, they ordered a K-9 dog to bite him. The bite wounds later became

badly infected and required months of medical treatment and surgical intervention.

After this encounter, Landon sued the City of North Port (the “City”), alleging

violations of his Fourth Amendment rights under 42 U.S.C. § 1983 based on the

officers’ use of excessive force.

       The district court granted the City’s motion for summary judgment. The

court found there was no genuine dispute that the officers’ use of force was

reasonable and therefore not excessive. After careful review, we reverse and

remand for further proceedings.1

                                                I.




       1
          We sua sponte grant rehearing in this case, withdraw the previous opinion filed on
September 10, 2018 and appearing at — F. App’x —, 2018 WL 4293324 (11th Cir. 2018), and
issue this opinion in its place. See, e.g., Mockeviciene v. U.S. Att’y Gen., 237 F. App’x 569,
570 (11th Cir. 2007) (per curiam) (unpublished). Landon’s petition for rehearing en banc is
therefore denied as moot. In addition, the previous opinion may not be cited by or to this court
or any district court of the Eleventh Circuit.
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      During the early evening hours of July 20, 2014, Landon was depressed and

suicidal. He entered the screened garage of the home he shared with his mother,

grabbed a knife, and slashed his left wrist multiple times. The cuts completely

transected his ulnar artery. His mother, Rose Landon (“Mrs. Landon”) discovered

him soon thereafter in the garage. She realized Landon was bleeding heavily from

the deep cuts he made to his wrist, and began screaming.

      Her screams attracted the attention of Landon’s brother-in-law, Peter

Madish, who lived next door. Sensing something was wrong, he rushed over to her

garage and saw an undressed Landon standing some distance away with a knife in

his hand. Madish thought Landon was under the influence of either drugs or

alcohol. Madish then went into the garage, put Landon in a headlock, and wrestled

the knife away. After losing control of the knife, Landon fled. In the meantime,

Mrs. Landon dialed 9-1-1 and informed the operator that her son was trying to kill

himself.

      Officers Dino Murges and Keith Bush were dispatched to the scene. When

they arrived, they found Madish standing in the driveway of his home. From him,

the officers learned that Landon was suicidal, likely intoxicated, and bleeding

badly from a self-inflicted injury. Madish also informed the officers that Landon

grabbed another knife before fleeing. Mrs. Landon told the officers a similar story.

The officers separately observed blood in the driveway of the Landon home and


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garage, with a significant amount of blood on the concrete outside. Based on their

observations and the statements of both Madish and Mrs. Landon, Officers Murges

and Bush knew Landon was “bleeding profusely.”

      Officer Bush, a K-9 officer, suggested using his K-9 dog, Tomy, to track

Landon down. Landon was not suspected of a crime, but the officers wanted to

locate him to make sure he was okay. Officer Murges agreed to serve as backup.

Using Tomy, the officers eventually tracked Landon to a wooded area, where he

lay on the ground, partially concealed by a bush and clad in only his underwear.

The officers came to a stop approximately fifteen feet away from Landon and

ordered him to show his hands. Officer Murges also immediately drew his firearm

and trained it on Landon.

      The parties dispute what happened next. Officers Bush and Murges testified

at their depositions that Landon was laying on his side and rolled further into a

fetal position after being ordered to show his hands. The officers warned Landon

they would release a K-9 dog on him if he did not comply with their demands.

Officer Murges additionally testified that Landon responded at one point by yelling

or screaming “Oh,” and something else that Murges “couldn’t exactly hear.” In

contrast, Officer Bush testified that Landon never said anything or made any noise

in response to their commands. Both Officer Murges and Officer Bush

acknowledged that Landon never made any movements towards them, and Officer


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Murges recalled that Landon was “obvious[ly]” bleeding. Nonetheless, Officer

Murges thought Landon was coherent and actively concealing himself from the

officers. Officer Bush also thought Landon was actively resisting commands.

       Landon, on the other hand, says he never responded to the officers and was

unconscious at the time. Although he has no memory of the incident, he

introduced expert testimony from Dr. Michael VanRooyen, who opined that

Landon’s likely Glasgow Coma Scale (“GSC”) score of 7 at the time meant

Landon was “only minimally responsive” and capable of non-responsive

movement and/or groaning and moaning. Dr. VanRooyen testified that he did not

think Landon’s GSC score was affected by the dog bite. Several other officers

who arrived at the scene after the bite gave deposition testimony that Landon was

unresponsive, motionless, and bleeding.

       The parties do not dispute that Officer Bush gave Tomy the command to bite

Landon. 2 In response, Tomy sank his teeth into Landon’s abdomen and pulled

Landon onto his back, at which point Officer Bush realized Landon was unarmed

and ordered Tomy to release Landon. Neither is it disputed that Tomy’s bite

punctured Landon’s abdomen in two places and that no knife was ever located in

the area Landon was found. Although Landon ultimately received medical


       2
         Officer Bush explained at his deposition that deploying a taser was not an option
because the wires would be obstructed by the brush. He also testified that he was afraid to
approach Landon out of fear he would be stabbed.
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attention for the injuries to his wrist and abdomen, the bite punctures became

infected and required extensive medical care.

      Landon sued the City in the United States District Court for the Middle

District of Florida on September 30, 2015. His amended complaint asserted two

claims under 42 U.S.C. § 1983 based on excessive force in violation of the Fourth

Amendment: failure to supervise and failure to discipline. His complaint also

included a claim of battery under Florida state law. After discovery, the City

moved for summary judgment.

      Landon responded in opposition to the City’s motion for summary

judgment. Included with his responsive pleading were numerous exhibits in

support of his opposition, including a transcript of Dr. VanRooyen’s deposition,

Dr. VanRooyen’s expert report, and a new affidavit from Landon stating that he

did not roll over on his side when Officer Bush ordered him to show his hands.

The district court granted summary judgment in favor of the City. The court first

rejected Landon’s new affidavit as a sham. Landon previously gave deposition

testimony that he was unconscious during the encounter with the officers and could

remember nothing of what transpired. Based on this testimony, the court

concluded Landon was not competent to testify on the matters included in the new

affidavit because he could not have had personal knowledge of what took place

during the time he was unconscious.


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      The district court next found that Landon failed to point to a genuine issue of

material fact about whether the officers used excessive force when Officer Bush

ordered Tomy to bite Landon. Because there can be no municipal liability under

42 U.S.C. § 1983 absent a constitutional violation (in this case, excessive force),

the district court granted the City summary judgment on Landon’s failure to train

and failure to discipline claims. Without any federal claims to adjudicate, the

district court declined to exercise supplemental jurisdiction over Landon’s

remaining state battery claim and dismissed that claim without prejudice.

      Landon timely appealed.

                                         II.

      We review a district court’s decision to exclude an affidavit filed in

opposition to a motion for summary judgment for abuse of discretion. See Reese

v. Herbert, 527 F.3d 1253, 1265 (11th Cir. 2008); McCorvey v. Baxter Healthcare

Corp., 298 F.3d 1253, 1256 (11th Cir. 2002). We review de novo a district court’s

grant of summary judgment, viewing the facts and drawing all reasonable

inferences in favor of the opposing party. Garczynski v. Bradshaw, 573 F.3d 1158,

1165 (11th Cir. 2009). Summary judgment is only appropriate when “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a).

                                         III.


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      Landon first argues the district court abused its discretion when it excluded

his affidavit from consideration as both inconsistent with his deposition testimony

and not based on personal knowledge. This argument is without merit.

      Landon stated at his deposition, “As far as I know, I was unconscious, so I

don’t know what I could have done.” When pressed to explain what he meant,

Landon admitted it was fair to say he “didn’t know what [he] did” in the woods.

He also repeatedly testified that he could not remember what happened after he ran

into the woods. He explained that his memory was foggy because he was “pretty

much” “check[ed] out” and “dead” after he fled the garage. Landon even reiterated

in his new affidavit that he never regained consciousness during the encounter with

Officers Bush and Murges.

      Federal Rule of Civil Procedure 56(c)(4) requires that “[a]n affidavit or

declaration used to support or oppose a motion must be made on personal

knowledge, set out facts that would be admissible in evidence, and show that the

affiant or declarant is competent to testify on the matters stated.” The district court

did not abuse its discretion when it found, based on Landon’s deposition

testimony, that he could not have possessed the personal knowledge required to

make the claims he did in his new affidavit. Cf. DiStiso v. Cook, 691 F.3d 226,

230 (2d Cir. 2012) (expressing concern that the parents’ deposition testimony was

inadmissible because they did not have “personal knowledge of what occurred,”


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and therefore may not have been competent to testify to the truth of what happened

to their son). As the district court observed, Landon could not have been both

unconscious and able to recall that he never “attempt[ed] to roll over onto his side

when Officer Bush commanded him to show his hands.” Thus, Landon necessarily

lacked personal knowledge of his movements, and the district court’s exclusion of

his affidavit was proper.

                                          IV.

      We agree with Landon, however, that the district court erred when it granted

summary judgment for the City on his 42 U.S.C. § 1983 claims.

      Plaintiffs seeking to hold a municipality liable for constitutional violations

under § 1983 must prove first, that there was a constitutional violation, and second,

that the violation was a product of the municipality’s “official policy” or

“unofficial custom or practice.” Grech v. Clayton Cty., 335 F.3d 1326, 1329 (11th

Cir. 2003) (en banc) (quotation marks omitted). Here, the district court did not

reach the second inquiry because it found Landon failed to introduce a genuine

dispute of material fact that the officers violated his constitutional rights by

engaging in excessive force. The district court’s assessment of the evidence

missed the mark. Our review of the record reveals a genuine dispute of material

fact as to what information the officers had when Officer Bush ordered Tomy to

bite Landon. This, in turn, implicates the core question of whether the officers’ use


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of force was objectively reasonable. As a result, the district court’s grant of

summary judgment to the City was not appropriate.

       Where, as here, there is a claim of excessive force under the Fourth

Amendment, we must ask whether the officers’ actions were “objectively

reasonable in light of the facts and circumstances confronting them, without regard

to their underlying intent or motivation.” Garczynski, 573 F.3d at 1166–67

(quotation marks omitted) (quoting Graham v. Connor, 490 U.S. 386, 397, 109 S.

Ct. 1865, 1872 (1989)). An officer’s good intentions do not “make an objectively

unreasonable use of force constitutional.” Graham, 490 U.S. at 397, 109 S. Ct. at

1872. Although we “must resist the temptation to judge an officer’s actions with

the 20/20 vision of hindsight,” Garcynski, 573 F.3d at 1167 (quotation marks

omitted), we are not required to close our eyes to evidence that circumstances at

the time may have rendered an officer’s actions objectively unreasonable. Instead,

we must pay “careful attention to the facts and circumstances of each particular

case, 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.”3 Graham, 490 U.S. at 396,

109 S. Ct. at 1872.



       3
         “Because this situation does not involve a criminal arrest, our facts do not fit neatly
within the Graham framework.” Mercado v. City of Orlando, 407 F.3d 1152, 1157 (11th Cir.
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       The City urges us to affirm the district court’s ruling because it was “hardly

unreasonable for Officer Bush to deploy Tomy” when the officers thought Landon

possessed a knife and was actively resisting commands. This argument, however,

fails to fully credit Landon’s evidence, which we are required to do on summary

judgment. Although it is uncontested that Officers Bush and Murges thought

Landon was armed with a knife when they found him in the woods, Landon

introduced evidence that they were also aware he was clad in nothing more than

his underwear and bleeding profusely from a self-inflicted wound. In addition,

Landon was not suspected of committing a crime. Last, and drawing all inferences

in Landon’s favor, there is evidence that even if the officers thought Landon

possessed a knife, they could not have reasonably thought he was in any condition

to use the knife. This evidence is sufficient for Landon’s case to survive summary

judgment.

       To begin, there is substantial evidence suggesting that the officers could not

have reasonably thought Landon posed an immediate threat to their safety or that

of others. First, the officers were aware Landon was bleeding profusely. The City

asserts that “the officers . . . had no way of discerning how much blood Landon

had lost.” But it matters little that neither Officer Bush nor Murges could have

known that Landon had cut through his artery. Both officers testified they

2005). Nonetheless, the Graham factors help guide our inquiry as to whether the officers’ use of
force in these circumstances was objectively reasonable. See Mercado, 407 F.3d at 1157.
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observed blood on the scene. Beyond that, Officer Murges testified there was

blood in the driveway, the garage, and the concrete outside, and that it was

“clear[]” from the evidence Landon was “bleeding profusely.” It was also

“obvious” to Officer Murges that Landon was still bleeding when the officers

found him in the woods.

      The officers further acknowledge that Landon never made any movements

toward them, and to the extent he moved, it was only to curl further into a “fetal”

position. Officer Bush also testified no one informed him Landon “was trying to

harm anyone other than himself” and that Landon was not suspected of committing

a crime. Viewing the evidence in the light most favorable to Landon and drawing

all inferences in his favor, the officers ordered a dog to bite Landon from a

distance of fifteen feet away even though Landon posed no threat to them and,

indeed, appeared significantly incapacitated due to substantial blood loss. Landon

did not physically move toward the officers and, based on Officer Bush’s

testimony, offered no verbal resistance whatsoever. In fact, Landon may have

made no “verbal noises,” much less statements, at all.

      Neither is it clear from the record that Landon was capable of rolling over

and curling into himself, as the officers recounted. Dr. VanRooyen testified

Landon’s GSC score was 7 when he received medical assistance, meaning he was




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only “minimally responsive.”4 Dr. VanRooyen also testified he did not think

Landon’s GSC score was different before the dog bite, and that someone with a

GSC score of 7 could “appear to be conscious but obtunded,” due to his or her

ability to move non-purposefully. Whether that non-purposeful movement could

include curling into a fetal position remains an open question. However, two

officers who arrived at the scene later testified that Landon was unresponsive and

motionless when they saw him. On a motion for summary judgment, it is

reasonable to infer from this evidence that Landon may not have moved at all in

response to the officers’ commands, and that even if he had, his movements would

have appeared lethargic or deadened. In other words, while the officers may have

had reason to think Landon was armed with a knife, there is also evidence that they

could not have reasonably thought Landon was in any condition to use the knife.

       In addition, Landon’s expert, Kyle Heyen, opined in his report that the

officers could have used a number of less forceful means to secure Landon. 5

According to Heyen, the officers could have moved closer to Landon or attempted

to change their position to get a better view of his face and hands rather than

immediately resorting to a dog bite. Heyen also said the officers could have waited


       4
        According to Dr. VanRooyen, the GSC scale ranges from 3 (“utterly unresponsive”) to
15 (“completely alert”).
       5
        Heyen is a former police officer and law enforcement canine trainer, who has testified
in a number of cases. The district court assumed for purposes of summary judgment that Heyen
was qualified and his report and deposition testimony admissible, as do we.
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for backup, which was already on the way, and arranged for a distraction. A

distraction maneuver would have taken “seconds” to employ, and would have

involved having one officer distract Landon with loud commands while a second

officer moved close enough to deploy a device such as a taser to subdue him. Last,

the officers could have moved closer to Landon and tased him even without a

distraction, given that Landon was not suspected of a crime and had made no

threatening movements towards them. Officer Bush was standing fifteen feet away

from Landon when he ordered Tomy to bite. However, a taser has a range of

twenty-five feet. Although Officer Bush testified that tasers are less accurate the

further away an officer stands from a subject, there was nothing preventing him

from moving a few feet closer to increase the likelihood he could successfully

subdue Landon by tasing him in the leg or torso. Instead, rather than attempt any

of these options, Officer Bush ordered Tomy to bite Landon while he was still

standing a full fifteen feet away and in no immediate danger of attack.

      Viewing the facts in this light, as we must on summary judgment, the

officers violated Landon’s Fourth Amendment rights when they ordered Tomy to

bite Landon—a man who was not wanted for a crime, posed no immediate threat to

the officers, and appeared unconscious or significantly impaired by blood loss.

See Mercado, 407 F.3d at 1157–58 (reversing grant of summary judgment where

an officer shot the suicidal plaintiff in the head even though the plaintiff had made


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no threatening moves toward the police, “was not actively resisting arrest,” and did

not “pose[] an immediate threat to the officers at the time he was shot”). The state

has “a compelling interest in preventing suicide,” id. at 1157, but this Court has

concluded before that an officer clearly engages in excessive force when he orders

a dog to attack and bite a person who poses no threat of bodily harm to the officers

and does not attempt to flee or resist arrest. See Priester v. City of Riviera Beach,

208 F.3d 919, 927 (11th Cir. 2000).

       Unlike in Priester, Landon was not suspected of a crime and may not have

even appeared conscious when Officer Bush ordered Tomy to bite him. In

addition, the officers had a range of less forceful means available to them. This is

sufficient to cast doubt on whether Officer Bush’s use of force was objectively

reasonable as a matter of law.6 We therefore reverse the district court’s grant of

summary judgment on Landon’s § 1983 claims and remand for further proceedings

consistent with this opinion.

       REVERSED AND REMANDED.


       6
         The City characterizes Landon’s injury in this case as “unfortunate, though less
unfortunate then his intended outcome upon entering the woods,” and argues that “an unfortunate
outcome does not equate to unreasonableness.” This argument misapprehends the crux of
Landon’s argument. That Landon sought to kill himself does not render the officers’ actions de
facto reasonable simply because the injuries he suffered did not result in his death. More to the
point, Landon’s argument is not that the officers violated his constitutional rights because they
harmed him. Rather, he argues—correctly—there was sufficient evidence in the record to
support his claim that the officers engaged in excessive force by inflicting serious injuries on him
when there was no objective reason to do so. For this reason, we reverse the district court’s grant
of summary judgment.
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