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                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-10193
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 0:15-cv-60918-JK



NANCY CAROL NIGRO,

                                             Plaintiff - Appellant,

versus

ELIAS CARRASQUILLO,



                                             Defendant - Appellee.

                      ________________________

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

                            (October 4, 2016)

Before WILLIAM PRYOR, JORDAN, and FAY, Circuit Judges.

PER CURIAM:
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      Nancy Nigro sued Officer Elias Carrasquillo under 42 U.S.C. § 1983,

alleging that he violated her Fourth Amendment rights by using excessive force.

The district court granted summary judgment to Officer Carrasquillo on qualified

immunity grounds. On appeal, Ms. Nigro argues that the district court erred in

granting summary judgment to Officer Carrasquillo and abused its discretion in

denying her motion for leave to amend her complaint to add the City of Sunrise as

a defendant, denying her motion to compel discovery, and granting Officer

Carrasquillo’s motion for extension of time.

      Following review of the record and consideration of the parties’ briefs, we

affirm the district court’s grant of summary judgment in favor of Officer

Carrasquillo, as well as the district court’s other rulings.

                                            I

      On September 7, 2014, Officer Carrasquillo and other officers responded to

a call that Ms. Nigro was causing a disturbance in her neighborhood. The

neighbors told Officer Carrasquillo that Ms. Nigro had yelled at them and had

thrown a painting, causing superficial damage to a car. With no explanation for

Ms. Nigro’s behavior, Officer Carrasquillo believed that it was appropriate to

detain Ms. Nigro under Florida’s Baker Act, Fla. Stat. § 394.463. Ms. Nigro later

explained that she was upset and may have been off her medication for certain

psychiatric conditions that day.


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      The officers handcuffed Ms. Nigro and placed her in the back of a patrol car.

Ms. Nigro began to scream and call Officer Carrasquillo names, and became “very

angry” because she felt that he was deliberately trying to provoke her. In their

depositions, Officer Carrasquillo and a neighbor testified that Ms. Nigro then

began to kick the rear passenger-side window while she was handcuffed in the

back of the patrol car. Photographs show that Ms. Nigro caused damage to the

patrol car by kicking out the window casing of the doorframe.

      In response to Ms. Nigro’s conduct, Officer Carrasquillo pepper sprayed Ms.

Nigro for two seconds while she was still in the back of the patrol car. Ms. Nigro

stopped struggling momentarily, but resumed kicking the window after a few

minutes. After being pepper sprayed again for two seconds, Ms. Nigro finally

calmed down. Officers then placed her in leg shackles and a spit mask, and called

an ambulance to treat her for pepper-spray exposure and to take her to a hospital.

      Ms. Nigro alleged that Officer Carrasquillo used excessive force when he

pepper sprayed her while she was handcuffed in the back of the patrol car. She

moved for partial summary judgment on July 26, 2015, seeking a judgment on

liability. When she filed her motion, no depositions had yet been taken and the date

agreed upon to take Ms. Nigro’s deposition was still two months later. The district

court rejected Ms. Nigro’s attempt to seek summary judgment prior to the taking of

critical testimony and denied the partial summary judgment motion without


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prejudice. The district court explained that at any time following the completion of

depositions Ms. Nigro could re-file her motion for partial summary judgment. Ms.

Nigro, however, did not refile her motion.

      After the close of discovery, Officer Carrasquillo moved for summary

judgment, arguing that he did not violate the Fourth Amendment in applying

pepper spray to Ms. Nigro, who was a violently-resisting detainee, and that he was

entitled to qualified immunity due to the lack of clearly established law prohibiting

his actions. The district court agreed with Officer Carrasquillo and ruled that

pepper spraying a handcuffed arrestee in the back of a police car was not per se

excessive force. The district court granted summary judgment on qualified

immunity grounds to Officer Carrasquillo, explaining that Ms. Nigro failed to point

to a single binding authority that prohibited pepper spraying an actively and

violently resisting detainee, and that Officer Carrasquillo’s use of minimal force

was reasonable to prevent Ms. Nigro from further damaging the car, resisting

arrest, and injuring herself or others.

                                          II

      We review the grant of a motion for summary judgment de novo, applying

the same legal standards used by the district court. See Carter v. Three Springs

Residential Treatment, 132 F.3d 635, 641 (11th Cir. 1998). We review the

evidence in light most favorable to the non-moving party. See id. Summary


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judgment is proper “if the pleadings, depositions, and affidavits show that there is

no genuine issue of material fact and that the moving party is entitled to judgment

as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting

Fed. R. Civ. P. 56(c)).

      The Fourth Amendment’s right to be free from unreasonable searches and

seizures includes the right to be free from excessive force during arrest. See

Graham v. Connor, 490 U.S. 386, 394–95 (1989). Therefore, claims that an officer

used excessive force to carry out an arrest “should be analyzed under the Fourth

Amendment and its ‘reasonableness’ standard.” Id. at 395.

      The “reasonableness” of a particular use of force “must be judged from the

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

of hindsight.” Id. A court must take 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.” Id. at 397. The reasonableness determination therefore requires “a

careful balancing of the nature and quality of the intrusion on the individual’s

Fourth Amendment interests against the countervailing governmental interests at

stake.” Lee v. Ferraro, 284 F.3d 1188, 1197 (11th Cir. 2002) (internal quotation

marks and citation omitted). The balancing test involves several factors, such as

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


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to the safety of officers or others, and whether the detainee is actively resisting

arrest or attempting to evade arrest.” Graham, 490 U.S. at 396.

      Both parties, and the district court, relied on our decision in Vinyard v.

Wilson, 311 F.3d 1340 (11th Cir. 2002). There, where officers pepper sprayed the

plaintiff while she was sitting in the back of a patrol car, we held that the Graham

factors weighed in the plaintiff’s favor. Critically, however, we noted in that case

that the plaintiff was not resisting arrest or attempting to flee. See id. at 1340.

      We recognized in Vinyard, that “[c]ourts have consistently concluded that

using pepper spray is reasonable, [ ] where the plaintiff was either resisting arrest

or refusing police requests.” Id. at 1348. We stated that “pepper spray is generally

of limited intrusiveness, and it is designed to disable a suspect without causing

permanent physical injury.” Id. And we further acknowledged that “pepper spray is

a very reasonable alternative to escalating a physical struggle with an arrestee.” Id.

      Officer Carrasquillo’s use of pepper spray did not constitute excessive force

in violation of the Fourth Amendment. Officer Carrasquillo applied two short

bursts of pepper spray in response to Ms. Nigro’s violently kicking the patrol car

door and resisting arrest. The use of minimal force associated with a couple of two-

second bursts of pepper spray was reasonable force to prevent Ms. Nigro from

further damaging government property, injuring herself, or harming the officers.

First, we have explained—albeit under different facts—that “[p]epper spray is a


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specially noninvasive weapon and may be one very safe and effective method of

handling a violent suspect who may cause further harm to himself or others.”

McCormich v. City of Ft. Lauderdale, 333 F.3d 1234, 1245 (11th Cir. 2003). Here

Ms. Nigro, who has been detained pursuant to Florida’s Baker Act, was acting

violently inside the patrol car. Second, in Vinyard we said in dicta that the use of

pepper spray to subdue an arrestee who was acting violently in a patrol car is not

excessive force. See Vinyard, 311 F.3d at 1348 n.9. That dicta is persuasive, and

we follow it in this case.

                                        III

      We review the denial of Ms. Nigro’s motion for leave to amend the

complaint on the ground of futility de novo. See City of Miami v. Wells Fargo &

Co., 801 F.3d 1258, 1265 (11th Cir. 2015). A proposed amendment is futile when

the complaint as amended would not survive a Rule 12(b)(6) motion to dismiss.

See Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th Cir. 1999).

      As previously stated, there was no Fourth Amendment violation stemming

from Officer Carrasquillo’s use of pepper spray on Ms. Nigro. Ms. Nigro’s

proposed amendment to add the City of Sunrise as a defendant would be futile

because the City cannot be liable if there was no underlying constitutional

violation.




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      The district court’s grant of Officer Carrasquillo’s motion for extension of

time, and the denial of Ms. Nigro’s motion to compel discovery, are also reviewed

for abuse of discretion. See Young v. City of Palm Bay, Fla., 358 F.3d 859, 863–64

(11th Cir. 2004) (extension of time); See also R.M.R. v. Muscogee Cnty. Sch. Dist.,

165 F.3d 812, 816 (11th Cir. 1999) (discovery). In reviewing a district court’s

decision for abuse of discretion, our review is limited; we give the court

“considerably more leeway than if we were reviewing the decision de novo.”

Young, 358 F.3d at 863. We affirm the district court’s decision so long as there is

no clear error in judgment. See id.

      Ms. Nigro has not pointed to any clear error of judgment regarding the grant

of Officer Carrasquillo’s motion for an extension of time. Additionally, we find no

clear error in the magistrate judge’s finding that the discovery Ms. Nigro sought

was overly broad and outside the range of discoverable information.

                                         IV

      For the foregoing reasons, we affirm the district court’s order granting

summary judgment in favor of Officer Carrasquillo and the district court’s

procedural rulings.

      AFFIRMED.




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