                                                        [DO NOT PUBLISH]


           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT                     FILED
                     ________________________          U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                             April 22, 2008
                            No. 07-12323                  THOMAS K. KAHN
                        Non-Argument Calendar                 CLERK
                      ________________________

                 D. C. Docket No. 05-61036-CV-DTKH


LUIS ARTIGA,


                                                              Plaintiff-Appellee,

                                 versus

OFFICER RICHARD GARCIA,
2328,
GREGORY SALADINO,
1704,


                                                      Defendants-Appellants.


                      ________________________

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

                            (April 22, 2008)
Before BIRCH, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

       Officers Richard Garcia and Gregory Saladino appeal the district court’s

order denying their motion for summary judgment based on qualified immunity in

this pro se civil rights action filed by Luis Artiga, pursuant to 42 U.S.C. § 1983,

alleging use of excessive force during an arrest. Appellants contend that they are

entitled to qualified immunity with respect to Luis Artiga’s sole surviving claim

related to the time subsequent to his initial confinement in Officer Garcia’s patrol

car.1 After careful review, we affirm.

       We review de novo a district court’s entry of a summary judgment motion

based on qualified immunity, applying the same legal standards as the district

court. See Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002). We resolve all

issues of material fact in favor of the plaintiff, and then determine the legal

question of whether the defendant is entitled to qualified immunity under that

version of the facts. Id.

       A government official who is sued under § 1983 may seek summary

judgment on the ground that he is entitled to qualified immunity. Holloman ex rel.


       1
         The district court entered summary judgment on Artiga’s other § 1983 claims, for false
arrest and malicious prosecution, based on qualified immunity. Artiga has not raised any challenge
to the rulings on these other claims. Accordingly, such claims are abandoned. See Horsley v. Feldt,
304 F.3d 1125, 1131 n. 1 (11th Cir. 2002) (concluding claim not raised on appeal abandoned).

                                                2
Holloman v. Harland, 370 F.3d 1252, 1263 (11th Cir. 2004). As we observed in

Lee v. Ferraro:

             Qualified immunity offers “complete protection for government
      officials sued in their individual capacities as long as ‘their conduct
      violates no clearly established statutory or constitutional rights of
      which a reasonable person would have known.’” Thomas v. Roberts,
      261 F.3d 1160, 1170 (11th Cir. 2001) (quoting Harlow v. Fitzgerald,
      457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982))
      (additional quotations omitted). The purpose of this immunity is to
      allow government officials to carry out their discretionary duties
      without the fear of personal liability or harassing litigation, see
      Anderson v. Creighton, 483 U.S. 635, 638, 107 S. Ct. 3034, 3038, 97
      L. Ed. 2d 523 (1987), protecting from suit “all but the plainly
      incompetent or one who is knowingly violating the federal law.”
      Willingham v. Loughnan, 261 F.3d 1178, 1187 (11th Cir. 2001).
      Because qualified immunity is a defense not only from liability, but
      also from suit, it is “important for a court to ascertain the validity of a
      qualified immunity defense as early in the lawsuit as possible.” GJR
      Invs., Inc. v. County of Escambia, 132 F.3d 1359, 1370 (11th Cir.
      1998) (citation omitted).

284 F.3d at 1193-94. To be eligible for qualified immunity, the official must first

establish that he was performing a “discretionary function” at the time the alleged

violation of federal law occurred. Holloman, 370 F.3d at 1263-64. Here, there is

no question that the officers were engaged in a discretionary function -- they were

in the process of making a lawful arrest.

      Once the public official has established that he was acting within the scope

of his discretionary authority, the burden shifts to the plaintiff to establish that

qualified immunity does not apply. See Lee v. Ferraro, 284 F.3d at 1194. To

                                            3
determine if the plaintiff has met his burden, we apply the Supreme Court’s

two-part test for evaluating a claim of qualified immunity: (1) “[t]aken in the light

most favorable to the party asserting the injury, do the facts alleged show the

officer’s conduct violated a constitutional right?” and (2) if a constitutional right

would have been violated under the plaintiff’s version of the facts, the court must

then determine “whether the right was clearly established.” Saucier v. Katz, 533

U.S. 194, 201 (2001); Holloman, 370 F.3d at 1264.

      The district court found the following:

             It is amply clear, as to the first alleged use of force which
      involved attempting to drag the handcuffed Artiga to a police car after
      he had been arrested and admittedly refused to walk, and then
      apparently involved the use of a mace-like chemical agent in order to
      make Artiga comply with verbal orders to approach and enter the
      police car, that the defendant officers are entitled to qualified
      immunity. (As to this incident, the plaintiff acknowledged at
      deposition that in light of his admitted resistence, this was the only
      thing the officer could have done to safely make him comply. It
      appears the use of force was applied for the purpose of making the
      arrestee Artiga comply with a lawful order to approach and enter a
      waiting police vehicle, that the use of force was necessary under the
      circumstances, and that the amount of force which was applied was
      measured, i.e., the minimum amount necessary to facilitate placement
      of the resisting arrestee into the police car).

              With respect to the uses of force which are alleged to have
      occurred after Artiga’s initial placement in a police vehicle, however,
      it is apparent, based on the evidence of record, that there are genuine
      issues of material fact, the existence of which precludes summary
      judgment. These include genuine issues regarding the nature and
      extent of force used by the officers, and which officer or officers used

                                         4
      it; the nature and extent of any resistence which may have been
      offered by the plaintiff. . . ; whether any such resistance offered by the
      plaintiff had ceased at such time that the alleged uses of force by
      officers applied; and finally, the nature and extent of injuries sustained
      by the plaintiff and whether or not they were self-inflicted, the result
      of a trip and fall, or caused by force applied by the defendant officers.

      The district court’s identification of genuine issues of material fact

concerning the claim for the alleged use of excessive force after Artiga’s initial

placement in Officer Garcia’s patrol car is entirely consistent with the Supreme

Court’s totality-of-the-circumstances analysis of such qualified-immunity issues:

the amount of force that a police officer reasonably can use without being

excessive 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.” Graham v. Connor, 490 U.S. 386, 396 (1989).

      The district court also properly applied our most pertinent caselaw on the

use of excessive force against handcuffed or unarmed defendants, prior to

concluding that genuine issues of material fact precluded the entry of summary

judgment based on qualified immunity. In Vinyard, we held that an officer was not

entitled to summary judgment based on qualified immunity, even though caselaw

had not previously addressed the particular fact pattern presented, where the officer

maced and bruised a disorderly conduct arrestee, who was handcuffed and cursing

                                          5
in the patrol car while being transported to detention. Vinyard, 311 F.3d at 1347-

49, 1355; see also Lee, 284 F.3d at 1198-1200 (concluding that, although the

officer was authorized to use a reasonable amount of force to effectuate the arrest,

the officer’s use of force after the arrest, which included slamming the arrestee’s

head against the trunk after she was subdued and in handcuffs, was clearly

unnecessary and disproportionate); Slicker v. Jackson, 215 F.3d 1225, 1232-33

(11th Cir. 2000) (denying qualified immunity to officers, who slammed a

disorderly conduct arrestee’s head into the pavement and repeatedly kicked him,

“even though he was handcuffed and did not resist, attempt to flee, or struggle with

the officers in any way”).2

       Again, at the summary judgment stage, Artiga’s version of the facts must be

accepted as true. Lee v. Ferraro, 284 F.3d at 1190. According to Artiga, after he

was handcuffed and placed in Officer Garcia’s patrol car, the officers ordered him

out of the car, at which point Officer Saladino punched Artiga in his right eye,

causing him to collapse and sink to his knees, and Officer Garcia subsequently

picked him up off the ground and slammed his face into the rear windshield.



       2
            We are unpersuaded by the officers’ argument that Artiga more closely resembles the
plaintiff in Willingham, in which we concluded that officers, who shot an unarmed woman, were
entitled to qualified immunity because the shots were within a “split-second” of her attempting to
assault and kill the officers. See 321 F.3d at 1303. Artiga, who was handcuffed, maced, and not
resisting arrest at this point, did not present a comparable threat to the threat posed in Willingham.

                                                  6
Artiga says he then lost consciousness. When he regained consciousness, Officer

Saladino maced Artiga’s injuries, eyes, and mouth and forced him into another

patrol car. On this record, the district court did not err by concluding, in light of

our caselaw, that the officers were not entitled to qualified immunity as to the

excessive-force claim based on the incidents after Artiga was placed in Officer

Garcia’s patrol car. Artiga’s evidence, which must be believed at the summary

judgment stage, would demonstrate a violation of his clearly established rights for

purposes of the qualified immunity analysis. See Vinyard, 311 F.3d at 1347-49,

1355; Lee, 284 F.3d at 1198-1200; Slicker, 215 F.3d at 1232-33.

      AFFIRMED.




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