                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                  U.S. COURT OF APPEALS
                                            No. 10-15915            ELEVENTH CIRCUIT
                                        Non-Argument Calendar           MAY 13, 2011
                                      ________________________           JOHN LEY
                                                                          CLERK
                                D.C. Docket No. 2:09-cv-00916-TMP

LEWIS FLOYD, JR.,

llllllllllllllllllllllllllllllllllllllll                             Plaintiff - Appellant,

                                               versus

DUANE CORDER,
individually and in his capacity
as a Deputy Sheriff of Jefferson
County Sheriff Department,

llllllllllllllllllllllllllllllllllllllll                           Defendant - Appellee.

                                     ________________________

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

                                           (May 13, 2011)

Before HULL, WILSON and MARTIN, Circuit Judges.

PER CURIAM:
      Lewis Floyd appeals the court’s dismissal of his lawsuit against Jefferson

County Deputy Sheriff Duane Corder. Floyd brought suit against Deputy Sheriff

Corder pursuant to 42 U.S.C. § 1983, alleging that he used unreasonable and

excessive force in violation of Floyd’s Fourth Amendment rights by tasing Floyd

three times in the course of making an arrest. The court granted Deputy Sheriff

Corder’s Motion for Judgment on the Pleadings, finding that he was entitled to

qualified immunity because the law was clearly established at the time of the

incident—October 23, 2007—“that a taser could be employed on a noncompliant

suspect where the crime alleged was minor, and even where no violence had

occurred.” Floyd appeals, arguing that Deputy Sheriff Corder was not entitled to

qualified immunity. For the following reasons, we affirm.

      Floyd argues that Deputy Sheriff Corder violated his clearly established

constitutional rights because, at the time of the tasing, he was unarmed, was not

disorderly, was not acting in an unreasonable manner, posed no threat of harm to

Deputy Sheriff Corder or others, was not physically resisting arrest when

assaulted, and was not disturbing the peace. The facts of the incident are

summarized in the court’s opinion:

            Floyd arrived at school about the time that the school day
            ended to pick up his nephew. He found out from a school
            employee, Bridgette Willis, that the nephew was in a

                                         2
               tutoring session, when he was supposed to be in detention.
               Willis went to get the nephew from the classroom, but
               Floyd followed her. Floyd’s nephew left the classroom
               with him, and the school employee walked in front of them
               back toward the school office. At one point, she believed
               that she heard a noise that sounded like Floyd hitting the
               child. Being alarmed, Willis summoned Deputy Corder
               from the school office, because she wanted his assistance
               “when a parent gets upset.” Willis told Corder that she
               though[t] Floyd had hit the student. Corder confronted
               Floyd in a breezeway between the school buildings, but
               Floyd did not respond. He continued moving toward his
               nephew. Corder put his hand up to stop Floyd from moving
               toward the nephew, but Floyd pushed or hit Corder’s hand
               away. Corder then pulled out his taser and told Floyd to get
               on the ground. Floyd did not comply, but continued to walk
               away and toward an entrance to the school. Corder again
               told Floyd to stop, but he kept going. Corder then fired the
               taser at him three times, causing Floyd to fall to the ground.
               At the time, Corder had no handcuffs with him . . . so he
               summoned help from another deputy.1

Deputy Sheriff Corder used his taser gun three times since Floyd did not react to

the first tase and because Deputy Sheriff Corder did not think he made contact

with Floyd on the second tase. Following this incident, Floyd was arrested and

charged with domestic violence, harassment, disorderly conduct, and resisting

arrest.


          1
          Floyd attached to his amended complaint a transcript of testimony given during his
criminal trial. The transcript contained testimony from two witnesses: Ms. Willis and Deputy
Sheriff Corder. Floyd stated in his amended complaint that the transcript was attached and “fully
incorporated” into the complaint. Thus, the court considered the trial transcript in assessing the
merits of the Rule 12(c) motion.

                                                3
      Floyd does not dispute that Deputy Sheriff Corder was acting within the

scope of his discretionary authority at the time of the incident. Thus, the burden is

on Floyd to show that Deputy Sheriff Corder was not entitled to qualified

immunity. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir.

2004). To defeat qualified immunity, the plaintiff must show that “(1) the

defendant violated a constitutional right, and (2) this right was clearly established

at the time of the alleged violation.” Id. We can address either prong first.

Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).

      We find that even assuming Deputy Sheriff Corder’s use of force was

excessive, he would still be entitled to qualified immunity because Floyd cannot

show that, on the day of the tasing, it was “clearly established” that such force was

excessive. Floyd cites one taser case to try and meet his burden: Powell v.

Haddock, 366 F. App’x 29 (11th Cir. 2010) (per curiam). First, we note that this

unpublished case is not binding. Moreover, the facts of Powell differ markedly

from the facts of the instant case: “As to Deputy Rackard’s use of his taser, Powell

had simply taken steps away from Deputy Stone before Deputy Rackard deployed

his taser the first time, and Powell was on the ground and unable to resist when

Deputy Rackard tasered her a second time.” Id. at 31. The suspect in Powell was

non-threatening. Id. at 30–31.

                                          4
      By contrast, Floyd was threatening: he was believed to have struck his

nephew in Ms. Willis’ presence, he was yelling at his nephew as Deputy Sheriff

Corder arrived, he refused to cooperate with Deputy Sheriff Corder’s attempts to

assess the situation, he made a move towards his nephew after Deputy Sheriff

Corder arrived, he hit Deputy Sheriff Corder’s hand away when Deputy Sheriff

Corder attempted to intervene, he refused to get on the ground after being ordered

to do so, and he refused to stop when ordered to do so. Thus, Powell does not

show that it was “clearly established” on October 23, 2007, that Deputy Sheriff

Corder’s use of his taser constituted excessive force.

      Moreover, Draper v. Reynolds, 369 F.3d 1270 (11th Cir. 2004), indicates

that, at the time of the incident, our case law established that the use of a taser in a

similar situation did not violate the suspect’s constitutional rights. In Draper, the

suspect was not armed, was not attempting to flee, and there was no violence or

report of violence concerning the suspect. See generally id. at 1272–74. Instead,

the suspect refused to get documents that the officer requested and was “hostile,

belligerent, and uncooperative.” Id. at 1278. We found that the officer’s use of a

taser “was reasonably proportionate to the difficult, tense and uncertain situation

that [the officer] faced at this traffic stop, and did not constitute excessive force.”

Id. In fact, the use of the taser “may well have prevented a physical struggle and

                                           5
serious harm” to the officer and the suspect. Id. Thus the existing law at the time

of the incident did not put Deputy Sheriff Corder on notice that deploying his taser

three times to subdue a noncompliant suspect where the underlying crime was

minor and where no violence had occurred violated Floyd’s constitutional rights.2

       In conclusion, even if Deputy Sheriff Corder’s use of his taser constituted

excessive force, he is entitled to qualified immunity because his actions did not

violate Floyd’s “clearly established rights.” Accordingly, we affirm the judgment

of the court.

       AFFIRMED.




       2
          Floyd also relies on Vinyard v. Wilson, 311 F.3d 1340 (11th Cir. 2002), a case
involving pepper spray, to argue that Deputy Sheriff Corder violated his clearly established
constitutional rights. But because the facts of Draper are more similar to the case at hand,
Vinyard does not entitle Floyd to relief.

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