                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                               OCT 19, 2006
                       Nos. 05-16538, 05-16539, 05-16835     THOMAS K. KAHN
                            Non-Argument Calendar                CLERK
                         ________________________

                       D. C. Docket No. 04-22173-CV-AJ

ADREAN LANS,

                                                              Plaintiff-Appellant,

                                     versus

MELISSA STUCKEY,
DONALD LAGO,
ARIEL SAUD,
SALVADOR LOZANO,
JORGE HUGO GOMEZ,
CITY OF MIAMI,
a Florida Municipal corporation,

                                                           Defendants-Appellees.

                          ________________________

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

                               (October 19, 2006)

Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:

      Adrean Lans, proceeding pro se, appeals several adverse rulings related to

the judgment against his complaint of misconduct by the City of Miami and five of

its police officers during the course of Lans’s arrest on charges of soliciting

prostitution. We affirm.

                                 I. BACKGROUND

      On the evening of September 5, 2001, Miami police officers Melissa

Stuckey, Donald Lago, Ariel Saud, Salvador Lozano, and Jorge Gomez were

involved in a “reverse-sting” operation regarding solicitation of prostitution.

Stuckey was standing at a bus stop, posing as a prostitute. Lans drove by in his

car. After several events, discussed below, Lago brought Lans in a police car to

the Allapattah police station, while Saud drove Lans’s vehicle to the station. At the

station, Gomez completed the paperwork regarding Lans’s arrest, and Lozano

prepared the paperwork for the impoundment of Lans’s vehicle.

      According to the facts found by the district court following a bench trial,

Lans had driven by Stuckey and offered her money in exchange for oral sex.

Stuckey gave a signal for Lans to be taken down, after which Lago ordered Lans to

get out of his vehicle. Lago performed a pat-down search, took Lans immediately

into custody, and brought Lans to the police station.



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      Lans’s version of the arrest differs. Lans contends that he recognized

Stuckey when he drove by her and, for that reason, offered her a ride, which she

declined. Lans contends that Lago never received a “take-down” signal. Lago

stopped Lans, and took Lans’s wallet and two cell phones, but then let Lans drive

away after being told by Stuckey to do so. Lans alleges that he returned to retrieve

a cell phone from Lago, was stopped again, and was taken into custody by Lago,

who brought Lans to the police station.

      Lans filed a complaint with claims for relief under both federal and state

law. Lans alleged in his complaint that Stuckey, Lago, Saud, Lozano, Gomez, and

the City of Miami are liable to him for damages based on violations of his federal

civil rights. See 42 U.S.C. § 1983. Lans’s complaint also asserted claims against

Stuckey, Lago, Saud, Lozano, and Gomez for malicious prosecution and claims

against all the defendants for false imprisonment and false arrest.

      During discovery, Lans served subpoenas duces tecum on Stuckey and

Gomez together with notices of depositions. Lans later filed two motions to

compel Stuckey and Gomez to produce additional documents in compliance with

the subpoenas. The magistrate judge to whom discovery motions had been

referred denied Lans’s motions.

      Lago, Saud, Lozano, and Gomez moved for summary judgment on all the



                                          3
claims against them, and the City of Miami moved for summary judgment on the

section 1983 claim against it. The district court denied Lago’s motion and granted

the motions filed by Saud, Lozano, Gomez, and the City of Miami. The district

court held a bench trial on all the claims against Stuckey and Lago and on the false

arrest claim against the City of Miami. Gomez, Stuckey, Lago, and Lans testified.

Crediting the testimony of the police officers, the district court concluded that the

officers had probable cause to arrest Lans and granted judgment to Stuckey, Lago,

and the City of Miami on all of the remaining claims against them. Lans filed

three separate notices of appeal, which have been consolidated for this decision.

                                  II. DISCUSSION

      Lans appeals (1) the denial of two of his motions to compel; (2) the

conclusion of the district court that Stuckey and Lago had probable cause to arrest

Lans for soliciting prostitution, and the finding of fact that supports the conclusion;

(3) the grant of summary judgment to Saud, Lozano, and Gomez; (4) the grant of

summary judgment to the City of Miami; (5) the denial of a motion for a

continuance that he filed during trial; and (6) the denial of a motion to recuse that

he filed after the trial ended. We discuss each issue in turn.




                                           4
        A. The Magistrate Judge Did Not Abuse His Discretion in Denying
                           Lans’s Motions To Compel

      “When reviewing a . . . denial of a motion to compel discovery, we apply an

abuse of discretion standard.” Holloman v. Mail-Well Corp., 443 F.3d 832, 837

(11th Cir. 2006). The district court is permitted a “range of choice,” and we will

not “second-guess” its actions unless they “reflect a clear error of judgment.” Id.

(internal quotation marks omitted). The magistrate judge did not abuse his

discretion. The magistrate judge concluded that Stuckey and Gomez had complied

with Lans’s subpoenas duces tecum to the full extent possible. The magistrate

judge credited certain representations made under oath by Stuckey and Gomez at

their depositions, as well as representations made in open court by counsel for the

defendants. The magistrate judge did not commit a clear error of judgment in

crediting those representations.

               B. The District Court Did Not Err in Concluding That
                   There Was Probable Cause for Lans’s Arrest

      At the bench trial, the district court credited the testimony of the officers and

found that Lans had offered Stuckey money in exchange for oral sex. On the basis

of that finding, the district court concluded that there was probable cause for

Lans’s arrest. Lans contends that the district clearly erred in its finding of fact and

in its conclusion that probable cause existed. We disagree.



                                           5
      We review de novo the determination that probable cause existed, but review

the supporting findings of fact for clear error. United States v. Jiminez, 224 F.3d

1243, 1248 (11th Cir. 2000). Determinations of witness credibility fall within the

exclusive province of the fact-finder and may not be revisited unless the testimony

is “‘incredible as a matter of law.’” United States v. Calderon, 127 F.3d 1314,

1325 (11th Cir. 1997) (quoting United States v. Hewitt, 663 F.2d 1381, 1386 (11th

Cir. 1981)). Witness testimony is incredible as a matter of law only when it is

“unbelievable on its face” and when it testifies to “facts that the witness physically

could not have possibly observed or events that could not have occurred under the

laws of nature.” Id. (internal quotation marks omitted).

      Lans’s arguments that the district court erroneously found probable cause

fail. Because Stuckey’s testimony that Lans offered her money in exchange for

oral sex is not incredible as a matter of law, the district court correctly determined

that there was probable cause for Lans’s arrest for soliciting prostitution. See Fla.

Stat. § 796.07. That the district court did not find that Lans actually paid Stuckey

or that Lans had any money on his person is immaterial, because the crime of

soliciting prostitution does not require the actual exchange of money. That the

officers also may have arrested Lans under the wrong subsection of the Florida

prostitution statute is of no moment. “‘[W]hen an officer makes an arrest, which is



                                           6
properly supported by probable cause to arrest for a certain offense, neither his

subjective reliance on an offense for which no probable cause exists nor his verbal

announcement of the wrong offense vitiates the arrest.’” Lee v. Ferraro, 284 F.3d

1188, 1196 (11th Cir. 2002) (quoting United States v. Saunders, 476 F.2d 5, 7 (5th

Cir.1973)).

              C. Even if Erroneous, the Grant of Summary Judgment to
                  Saud, Lozano, and Gomez Was Harmless Error

      We review a grant of summary judgment de novo. Bosarge v. U.S. Dep’t of

Educ., 5 F.3d 1414, 1417 (11th Cir. 1993). The district court granted Saud,

Lozano, and Gomez summary judgment against Lans’s claim under section 1983

based on qualified immunity. Qualified immunity protects police officers

performing discretionary functions from liability under section 1983 as long as

their conduct does not violate a clearly established constitutional right. See Rich v.

Dollar, 841 F.2d 1558, 1563 (11th Cir. 1988). After an officer establishes that his

acts were within the scope of his discretionary authority, the burden then shifts to

the plaintiff, id. at 1563-64, who faces a two-step inquiry: the plaintiff must (1)

establish that the officer violated a constitutional right and (2) establish that the

violated right was clearly established, Kingsland v. City of Miami, 382 F.3d 1220,

1232 (11th Cir. 2004).

      At the summary judgment stage, Lans contended that the evidence

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demonstrated that Saud, Lozano, and Gomez participated in a bad faith and illegal

arrest that violated his clearly established constitutional rights. The district court

disagreed. As to Lans’s state law claims against Saud, Lozano, and Gomez, the

district court also granted summary judgment, because it determined that the

Florida sovereign immunity statute, Fla. Stat. § 768.28(9)(a), shielded the officers.

      Even if the district court erred in entering summary judgment, any error was

harmless. Because we affirm the conclusion of the district court following the

bench trial that there was probable cause for Lans’s arrest, Lans could not in any

event have sustained any of his claims against Saud, Lozano, or Gomez. The

summary judgment, even if erroneous, “did not affect the substantial rights of the

parties.” Fed. R. Civ. P. 61; cf. Wilson v. Muckala, 303 F.3d 1207, 1219 (10th Cir.

2002) (holding that grant of summary judgment, even if erroneous, was harmless

in light of later determinations by jury).

             D. Even if Erroneous, the Grant of Summary Judgment to
                      the City of Miami Was Harmless Error

      A municipality may be liable under section 1983 for the actions of a police

officer “only when municipal ‘official policy’ causes a constitutional violation.”

Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998) (quoting Monell v.

Dep’t of Soc. Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 2037-38 (1978)). A

plaintiff must “‘identify a municipal “policy” or “custom” that caused [his]

                                             8
injury.’” Id. (quoting Bd. of County Comm'rs v. Brown, 520 U.S. 397, 403, 117

S.Ct. 1382, 1388 (1997)). The district court granted summary judgment to the City

of Miami on the ground that Lans failed to identify a policy or custom.

      Even if the district court erred, the error was harmless. Because we affirm

the conclusion of the district court following the bench trial that there was probable

cause for Lans’s arrest, Lans could not in any event have established that he was

arrested illegally and suffered a constitutional violation. Lans could not have

sustained his section 1983 claim against the City of Miami.

          E. The District Court Did Not Abuse Its Discretion in Denying
                         Lans’s Motion for a Continuance

      During the bench trial, in the middle of his direct examination of Stuckey,

Lans filed a motion for a continuance. Lans argued two bases for his motion: (1)

the need to obtain deposition transcripts for the purpose of impeaching witnesses;

and (2) the need to procure the attendance of his physician, who would testify as to

medical damages. The district court denied the continuance, but informed Lans

that, in the event that he prevailed on liability, he would have the opportunity to

bring in his physician on the issue of damages. Lans contends that the district

court erred in denying his motion. We disagree.

      As a preliminary matter, the district court effectively granted Lans a

continuance with respect to the testimony of Lans’s physician, and as to the

                                           9
continuance with respect to the deposition transcripts, we review the denial of a

motion for a trial continuance for abuse of discretion. United States v. Bowe, 221

F.3d 1183, 1189 (11th Cir. 2000). We consider four factors: (1) the extent of the

movant’s diligence in his efforts to be ready on the date of the trial; (2) how likely

it is that the need on which the request for the continuance was based could have

been met had the continuance been granted; (3) the extent to which the continuance

would have inconvenienced the court and the opposing parties; and (4) the extent

to which the movant might have suffered harm as a result of the denial. Quiet

Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1350-51 (11th Cir.

2003) (quoting Hashwani v. Barbar, 822 F.2d 1038, 1040 (11th Cir. 1987)). We

are “mindful that ‘[t]he denial of a continuance is within the broad discretion of the

district court and will not be overturned unless arbitrary or unreasonable.’” Id.

(quoting Hashwani, 822 F.2d at 1040).

      The district court did not abuse its discretion. Lans had taken depositions

more than seven months before the trial, and at the summary judgment hearing,

approximately six weeks before the trial, the district court had reminded Lans to

order deposition transcripts. As of the day of the trial, Lans had not ordered the

transcripts. Lans’s extreme lack of diligence, coupled with the fact that the trial

had already begun, gave the district court ample reason to deny Lans a



                                           10
continuance.

           F. The District Court Did Not Abuse Its Discretion in Denying
                             Lans’s Motion To Recuse

      On November 9, 2005, several days after the bench trial had concluded and

judgment had been entered against Lans, Lans filed a motion to recuse the district

court. See 28 U.S.C. § 455(a). In a thorough order, the district court denied Lans’s

motion. Lans contends that the district court erred. We disagree.

      Section 455(a) provides that a judge “shall disqualify himself in any

proceeding in which his impartiality might reasonably be questioned.” Id. We

review the decision of the district court not to recuse under section 455(a) for

abuse of discretion. United States v. Bailey, 175 F.3d 966, 968 (11th Cir. 1999).

The district court did not abuse its discretion. Except for Lans’s disagreement with

certain rulings that the district court made during the bench trial, all of the grounds

upon which Lans relies for his motion to recuse were known to him before the

district court ruled against him on the merits. We have previously held that a

party, “knowing the facts claimed to support a § 455(a) recusal for appearance of

partiality[,] may not lie in wait, raising the recusal issue only after learning the

court’s ruling on the merits.” Phillips v. Amoco Oil Co., 799 F.2d 1464, 1472

(11th Cir. 1986) (citing United States v. Slay, 714 F.2d 1093, 1094 (11th Cir.

1983)). As for the rulings during the bench trial, those rulings cannot serve as the

                                            11
basis for a recusal motion unless the movant also demonstrates “pervasive bias and

prejudice” by the district court. McWhorter v. City of Birmingham, 906 F.2d 674,

678 (11th Cir. 1990) (internal quotation marks omitted). The district court

exhibited no bias or prejudice against Lans. On the contrary, the transcript reflects

that the district court exhibited patience in the face of ad hominem attacks by Lans,

and the district court attempted repeatedly to assist Lans with perfecting this

appeal.

                                III. CONCLUSION

      The judgment against Lans is

      AFFIRMED.




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