             Case: 18-10094   Date Filed: 09/10/2018   Page: 1 of 10


                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 18-10094
                           Non-Argument Calendar
                         ________________________

                   D.C. Docket No. 5:16-cv-00413-JSM-PRL


JOHN COTTAM,

                                                              Plaintiff-Appellant,
                                     versus
CITY OF WILDWOOD, et al.,

                                                                       Defendants,

DOUGLAS PELTON,
City of Wildwood Police Officer,

                                                             Defendant-Appellee.

                        __________________________

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

                              (September 10, 2018)

Before JORDAN, NEWSOM, and JULIE CARNES, Circuit Judges.
                Case: 18-10094       Date Filed: 09/10/2018        Page: 2 of 10


PER CURIAM:

       John Cottam brought this action against Officer Douglas Pelton, asserting

false arrest and malicious prosecution claims under 42 U.S.C. § 1983 and

intentional and negligent infliction of emotional distress claims under Florida law

after Cottam was stopped for speeding and arrested for “eluding,” in violation of

Fla. Stat. § 316.1935(2). The district court granted summary judgment in favor of

Pelton, concluding (1) that Pelton was entitled to qualified immunity as to both of

the § 1983 claims, (2) that Pelton’s conduct while arresting Cottam was not

sufficiently outrageous as to constitute intentional infliction of emotional distress,

and (3) that Pelton was immune from liability for the negligent infliction of

emotional distress claim under Fla. Stat. § 768.28(9)(a).

       On appeal, Cottam argues that the district court erred in granting summary

judgment because there were numerous disputed issues of material fact

demonstrating that Pelton fabricated the eluding charge. After careful review, we

affirm. 1




1
  We review a district court’s entry of summary judgment de novo. Hallmark Developers, Inc. v.
Fulton Cty., Ga., 466 F.3d 1276, 1283 (11th Cir. 2006). Summary judgment is appropriate when
the evidence presents no genuine dispute as to any material fact and compels judgment as a
matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material if it may
affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). A material fact is genuinely in dispute if the record evidence is such that a
reasonable jury could return a verdict for the non-moving party. Id. Factual disputes that are
unnecessary will not be counted. Id.

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                                           I

      Qualified immunity protects government officials engaged in discretionary

functions unless they violate clearly established federal statutory or constitutional

rights of which a reasonable person would have known. Keating v. City of Miami,

598 F.3d 753, 762 (11th Cir. 2010). To receive qualified immunity, “the public

official must first prove that he was acting within the scope of his discretionary

authority when the allegedly wrongful acts occurred.” Kingsland v. City of Miami,

382 F.3d 1220, 1232 (11th Cir. 2004). Here, Pelton was acting within the scope of

his discretionary authority when he stopped and arrested Cottam. So the burden

shifts to Cottam to show that qualified immunity should not apply because Pelton

(1) violated a constitutional right and (2) that right was clearly established at the

time of the incident. Garczynski v. Bradshaw, 573 F.3d 1158, 1166 (11th Cir.

2009). We may consider these two prongs in any order. Pearson v. Callahan, 555

U.S. 223, 236 (2009).

                                           A

      An officer is entitled to qualified immunity against false-arrest claims if,

based on the totality of the circumstances, the officer had arguable probable cause

to effectuate the arrest. Davis v. Williams, 451 F.3d 759, 762–63 (11th Cir. 2006).

Arguable probable cause exists where an objectively reasonable officer in the same

circumstances and possessing the same knowledge as the arresting officer could


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have believed that probable cause existed. Thornton v. City of Macon, 132 F.3d

1395, 1399 (11th Cir. 1998). Arguable probable cause is a lower standard than

actual probable cause, and only requires that under all of the facts and

circumstances, an officer reasonably could―but not necessarily would―have

believed that probable cause was present. Crosby v. Monroe Cty., 394 F.3d 1328,

1332 (11th Cir. 2004). Importantly, an arrest is lawful so long as there is probable

cause to support an arrest for any offense, even if probable cause does not exist for

the offense announced at the time of the arrest. Lee v. Ferraro, 284 F.3d 1188,

1196 (11th Cir. 2002).

      Here, the district court properly granted summary judgment in favor of

Pelton as to Cottam’s false-arrest claim because Pelton had arguable probable

cause to arrest Cottam for at least three offenses: (1) attempting to elude arrest, in

violation of Fla. Stat. § 316.1935(1), (2) trespassing on private property, in

violation of Fla. Stat. § 810.09(1)(a)(1), and (3) speeding, in violation of Fla. Stat.

§ 316.189(1).

                                           1

      Fla. Stat. § 316.1935(1) provides that “[i]t is unlawful for the operator of any

vehicle, having knowledge that he or she has been ordered to stop such vehicle by

a duly authorized law enforcement officer, willfully to refuse or fail to stop the

vehicle in compliance with such order or, having stopped in knowing compliance


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with such order, willfully to flee in an attempt to elude the officer.” To establish

probable cause for an arrest under § 316.1935(1), the arresting officer must

reasonably believe that the arrestee knew that he had been ordered to stop. See

Manners v. Cannella, 891 F.3d 959, 970 (11th Cir. 2018). Based solely on

Cottam’s version of events, Pelton witnessed Cottam speed down the highway

while Pelton pursued him with his lights flashing, and then witnessed Cottam turn

onto a side road, drive past a public parking lot, drive past “no trespassing” and

“do not enter” signs, enter into a restricted railroad area, and maneuver his car

around barricades and onto the train tracks, before stopping his vehicle between the

tracks. On these undisputed facts alone, an objectively reasonable officer could

have believed that Cottam knew that he had been ordered to stop, but was

attempting to elude arrest. Accordingly, Pelton had arguable probable cause to

arrest Cottam for attempting to elude arrest in violation of Fla. Stat. § 316.1935(1).

                                          2

      Fla. Stat. § 810.09(1)(a)(1) provides that it is unlawful to willfully enter onto

property with a notice against trespassing. In this case, the arrest scene photos

show, and Cottam admits, that he drove past a “NO TRESPASSING” sign and

entered onto private property. Moreover, Cottam does not raise any issues on

appeal to counter this determination. Therefore, Pelton also had arguable probable




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cause to arrest Cottam for trespassing on private property, in violation of

§ 810.09(1)(a)(1).

                                          3

      Finally, Fla. Stat. § 316.189(1) provides that it is unlawful for any person to

exceed a posted speed limit. Id. Here, Cottam did not dispute that he was

traveling more than 20 miles-per-hour over the posted speed limit. Although

§ 316.189(1) is only a misdemeanor, under Florida law, Pelton was entitled to

perform a full custodial arrest. See Durruthy v. Pastor, 351 F.3d 1080, 1093 (11th

Cir. 2003). Accordingly, Pelton also had arguable probable cause to arrest Cottam

for speeding in violation of Fla. Stat. § 316.189(1).
                                      *   *    *

      Because even based solely on Cottam’s version of events, Pelton had

arguable probable cause to arrest Cottam under Fla. Stat. §§ 316.1935(1),

810.09(1)(a)(1), and 316.189(1), Cottam’s assertions that Pelton fabricated other

aspects of the eluding charge are immaterial. See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986) (“Only disputes over facts that might affect the outcome

of the suit under the governing law will properly preclude the entry of summary

judgment. Factual disputes that are irrelevant or unnecessary will not be

counted.”).




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                                           B

      To establish a malicious-prosecution claim under § 1983, a plaintiff must

prove (1) the elements of common law malicious prosecution and (2) a violation of

his Fourth Amendment right to be free from unreasonable seizures. Kingsland,

382 F.3d at 1234. Under the second prong, a § 1983 plaintiff must prove that he

“was seized in relation to the prosecution, in violation of his constitutional rights.”

Id. at 1235. In the case of a warrantless arrest, this requires that the party was

arraigned or indicted, not merely arrested. Id.

      Here, Cottam was never arraigned or indicted, but was merely arrested.

Accordingly, the district court properly granted summary judgment against

Cottam’s malicious-prosecution claim because Cottam was never seized in

violation of his constitutional rights. See id.

      Moreover, and in any event, Cottam’s malicious-prosecution claim is

precluded because, as already explained, Pelton had arguable probable cause to

arrest Cottam. See Black v. Wigington, 811 F.3d 1259, 1267 (11th Cir. 2016)

(“[T]he presence of probable cause defeats a claim of malicious prosecution.”).

                                           II

      Under Florida law, no government agent shall be personally liable for acts

within the scope of his employment unless the government agent acted in bad faith

or with a malicious purpose or in a manner exhibiting a wanton and willful


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disregard of human rights, safety, or property. Fla. Stat. § 768.28(9)(a). The

existence of probable cause contradicts any suggestion of malicious intent or bad

faith. Wood v. Kesler, 323 F.3d 872, 884 (11th Cir. 2003).

                                         A

      To establish an intentional-infliction-of-emotional-distress claim under

Florida law, the plaintiff must show that the defendant’s conduct was intentional or

reckless, was outrageous, and caused severe emotional distress. Horizons

Rehabilitation, Inc. v. Healthcare & Ret. Corp., 810 So. 2d 958, 964 (Fla. Dist. Ct.

App. 2002). The standard in Florida for outrageous conduct—which is a question

of law—is extremely high. Metro. Life Ins. Co. v. McCarson, 467 So. 2d 277, 278

(Fla. 1985). The plaintiff must show that the defendant’s actions were “so extreme

in degree as to go beyond all possible bounds of decency.” Von Stein v. Brescher,

904 F.2d 572, 584 (11th Cir. 1990). An officer is never liable where he has done

no more than to insist upon his legal rights in a permissible way, even though he is

well aware that such insistence is certain to cause emotional distress. McCarson,

467 So. 2d at 279.

      The district court properly granted summary judgment against Cottam’s

intentional-infliction-of-emotional-distress claim because Pelton’s conduct while

arresting Cottam was not sufficiently outrageous. See Von Stein, 904 F.2d at 584;

McCarson, 467 So. 2d at 279. Moreover, because Pelton had arguable probable


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cause to arrest Cottam, his conduct was not malicious or in bad faith; accordingly,

he is entitled to immunity under Florida law. See Fla. Stat. § 768.28(9)(a).

                                           B

      To establish a negligent-infliction-of-emotional-distress claim under Florida

law (1) the plaintiff must suffer a physical injury, (2) the plaintiff’s physical injury

must be caused by the psychological trauma, (3) the plaintiff must be involved in

some way in the event causing the negligent injury to another, and (4) the plaintiff

must have a close personal relationship to the directly injured person. Zell v. Meek,

665 So. 2d 1048, 1054 (Fla. 1995). Additionally, the plaintiff generally must

demonstrate that the emotional stress suffered flowed from injuries sustained in an

impact. Fernander v. Bonis, 947 So. 2d 584, 590 (Fla. Dist. Ct. App. 2007)

(noting that there are exceptions to Florida’s impact rule, but applying the rule to

dismiss a negligent-infliction-of-emotional-distress claim alleging a false arrest).

      Here, the district court’s grant of summary judgment against Cottam’s

negligent-infliction-of-emotional-distress claim was proper. As an initial matter,

Cottam has failed to show that his emotional stress was caused by injuries he

sustained in an impact, or that he should otherwise be granted an exception from

Florida’s impact rule. See id. Furthermore, because Pelton had arguable probable

cause to arrest Cottam, Pelton is again entitled to immunity under Florida

law. See Fla. Stat. § 768.28(9)(a).


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                                        III

      For the foregoing reasons, we conclude that Pelton is entitled to qualified

immunity as to his § 1983 claims, and statutory immunity as to his state law

claims. Accordingly, the district court’s grant of summary judgment is affirmed.

      AFFIRMED.




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