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                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-14211
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 1:17-cv-03263-TWT



SANDRA HINES,
natural mother and legal guardian of K.S.,

                                                             Plaintiff – Appellant,

                                      versus

FELICIA JEFFERSON,
Individual Capacity,

                                                            Defendant – Appellee.

                          ________________________

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

                              (November 18, 2019)

Before WILLIAM PRYOR, BRANCH, and GRANT, Circuit Judges.

PER CURIAM:
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       This case arises from a fight between two female students at Newton High

School in Georgia. Felicia Jefferson, the school resource officer, broke up the fight

and escorted one of the students, fourteen-year-old K.S., to Jefferson’s office. K.S.

was then charged with obstructing an officer and disorderly conduct, though both

charges were later dismissed. Sandra Hines, K.S.’s mother, filed this action on

behalf of K.S., asserting claims under 42 U.S.C. § 1983 for excessive force,

malicious prosecution, and excessive corporal punishment against Deputy

Jefferson and the Newton County School System.1 The district court granted

summary judgment in favor of Deputy Jefferson and the school district. While the

case was pending on appeal, Hines voluntarily dismissed her case against the

school district, so we consider only those claims against Deputy Jefferson.

Because no reasonable jury could find in favor of Hines, we affirm.

                                  I.      BACKGROUND

       On August 29, 2016, K.S. was standing in the common area of the school

before classes started when another student, D.B., tapped her on the shoulder and

asked if she wanted to fight. K.S. responded that she did not want to fight and



       1
           The excessive corporal punishment claim in the complaint alleges that the school
district is liable because its failure to train and supervise Deputy Jefferson led to Deputy
Jefferson’s use of excessive corporal punishment. It appears this claim may have been plead only
against the school district. However, because neither the district court nor Deputy Jefferson read
the complaint this way and the claim against the school district necessarily rests on an allegation
that Deputy Jefferson used excessive corporal punishment, we construe the complaint as
pleading excessive corporal punishment against both Deputy Jefferson and the school district.
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wanted to go to class. D.B. then punched K.S. in the face. K.S. then hit D.B. in

the face, and D.B. pulled K.S.’s hair. K.S. grabbed D.B. around the upper part of

her body, and the two girls fell to the floor where they continued punching each

other. A crowd of students began to form in the common area to watch the fight.

School officials attempted to break up the fight. At this point, K.S. and Deputy

Jefferson’s versions of the events diverge.

      On the one hand, K.S. maintains that someone pulled D.B. off of her and

that someone else, who was wearing khaki pants, grabbed K.S.’s legs trying to

hold her, but she did not know the identity of either person. Another person then

approached K.S. At the time, K.S. did not know who this person was either but

she observed that the person was wearing brown pants that were part of a uniform

she had seen people wearing around the school. K.S. later identified the person as

Deputy Jefferson. Deputy Jefferson then told K.S. that she was under arrest and

put her in a “choke hold,” meaning that Deputy Jefferson, according to K.S.,

“scooped [her] up and was holding [her] by [her] neck pretty much.” Deputy

Jefferson put her forearms around K.S.’s neck and then carried her from the

common area to her office, holding her by the neck with her feet dangling above

the ground. The whole time Deputy Jefferson was “directly behind” K.S. K.S.

says that on the way to the office she was trying to get down by “moving [her]

whole body” and “[s]quirming, wiggling, twisting, [and] turning” to get away. It


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took about two minutes to travel from the common area to the office. K.S. asserts

that as she struggled, she told Deputy Jefferson that she could not breathe, and that

Deputy Jefferson said that she was resisting arrest. Sometime on the way to the

office, K.S. saw Deputy Jefferson’s name on her uniform and was thereby able to

identify her. When they arrived at Deputy Jefferson’s office, Deputy Jefferson let

her go.

      On the other hand, according to Deputy Jefferson, Coach Edgar Gousse was

the person who initially held K.S. on the ground by her arms until Deputy

Jefferson arrived. Deputy Jefferson stated that she approached K.S. wearing her

Newton County Sheriff’s Office uniform of brown pants and a tan shirt marked

with deputy insignia and patches. She then leaned in front of K.S. so that K.S.

could see who she was. She also told Coach Gousse that he could let go of K.S.,

which Coach Gousse did. Deputy Jefferson alleges that K.S. refused to comply

with her instructions to stand up and go to the office, and that K.S. scratched her

right arm and tried to grab Deputy Jefferson “by the neck of [her] shirt.” Deputy

Jefferson maintains that she never picked K.S. up by the neck, noting that she was

not strong enough or tall enough to do so; instead, she says that she stood behind

K.S. and held K.S.’s upper arms and chest area, embracing her upper body, which

was necessary because K.S. refused to walk independently and continued to fight.

Deputy Jefferson states that K.S.’s feet were not dangling and that they both


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walked to the office with their feet on the ground, while K.S. grabbed at Deputy

Jefferson’s arms trying to “get free” of her embrace. When they got to the office,

Deputy Jefferson released K.S. and K.S. sat in a chair. At no point did Deputy

Jefferson ever handcuff K.S.

      When she got home, K.S. complained that her neck was hurting, and her

mother took her to see Dr. Richmond. K.S. testified that she had pain when

moving her neck from side to side and that there was bruising and swelling on her

neck. Dr. Richmond noted no external bruises or abnormal breathing on K.S.’s

medical records. An x-ray of K.S.’s neck was normal. Dr. Richmond gave K.S. a

foam neck collar to wear for a couple of weeks and told her that she could take

ibuprofen for pain.

      The District Attorney for Newton County then issued a delinquency petition

against K.S. for obstruction of an officer and disorderly conduct. The district

attorney ultimately dismissed the petition, explaining that “[w]hile there was

sufficient probable cause for a Petition to be filed against [K.S.], the State is unable

to prove its case beyond a reasonable doubt.”

      Hines filed this § 1983 action in the Magistrate Court of Newton County

Georgia alleging claims of excessive force in violation of the Fourth Amendment

against Deputy Jefferson, malicious prosecution in violation of the Fourteenth and

Fourth Amendments against Deputy Jefferson, and a claim of excessive corporal


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punishment in violation of the Fourth Amendment against both Deputy Jefferson

and the Newton County School System. The school district, with the consent of

Deputy Jefferson, removed the case to the United States District Court for the

Northern District of Georgia. After discovery, Deputy Jefferson and the school

district filed their respective motions for summary judgment. The district court

granted the motions, concluding that Deputy Jefferson’s use of force was

objectively reasonable and that, in any event, Deputy Jefferson was entitled to

qualified immunity. The district court also determined that Hines’s malicious

prosecution and corporal punishment claims failed as a matter of law. Hines

timely appealed.

      Hines later moved this Court to dismiss Newton County School District

from this appeal. We granted the motion and dismissed the school district from the

appeal.

                        II.    STANDARD OF REVIEW

      We review “a district court’s grant of summary judgment de novo, applying

the same legal standards used by the district court.” Krutzig v. Pulte Home Corp.,

602 F.3d 1231, 1234 (11th Cir. 2010). “Summary judgment is appropriate where,

viewing the movant's evidence and all factual inferences arising from it in the light

most favorable to the nonmoving party, there is no genuine issue of any material

fact, and the moving party is entitled to judgment as a matter of law.” Id.


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                                III.   DISCUSSION

A.    Excessive Force

      Section 1983 provides that any person who under color of state law deprives

a person of “any rights, privileges, or immunities secured by the Constitution and

laws” shall be liable to the affected person. 42 U.S.C. § 1983. Claims that law

enforcement officers used excessive force in the course of an arrest or other seizure

of an individual are evaluated under the Fourth Amendment’s “objective

reasonableness” standard. Graham v. Connor, 490 U.S. 386, 388, 395 (1989).

Objective reasonableness must be judged “from the perspective of a reasonable

officer on the scene, rather than with the 20/20 vision of hindsight.” Id. at 396.

And “[t]he calculus of reasonableness must embody allowance for the fact 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 396–97.

      In addition, an officer’s liability is limited in certain situations by the

doctrine of qualified immunity. “Qualified immunity shields government officials

from liability for civil damages for torts committed while performing discretionary

duties unless their conduct violates a clearly established statutory or constitutional

right.” Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th Cir. 2008). [I]n an

excessive force case, ‘qualified immunity applies unless application of the standard


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would inevitably lead every reasonable officer . . . to conclude the force was

unlawful.’” Slicker v. Jackson, 215 F.3d 1225, 1232 (11th Cir. 2000) (quoting

Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559 (11th Cir. 1993)).

      For qualified immunity to apply, a “public official must first prove that he

was acting within the scope of his discretionary authority when the allegedly

wrongful acts occurred.” Gilmore v. Hodges, 738 F.3d 266, 272 (11th Cir. 2013)

(quoting Terrell v. Smith, 668 F.3d 1244, 1250 (11th Cir. 2012)). Once a public

official proves that he was acting within the scope of his discretionary authority,

“the burden shifts to the plaintiff to satisfy the following two-pronged inquiry:

(1) whether the facts that a plaintiff has shown make out a violation of a

constitutional right; and (2) whether the right at issue was clearly established at the

time of the defendant’s alleged misconduct.” Id. Our inquiry “can begin with

either prong; neither is antecedent to the other.” Morris v. Town of Lexington, 748

F.3d 1316, 1322 (11th Cir. 2014) (citing Pearson v. Callahan, 555 U.S. 223, 236

(2009)). We begin with the second prong.

      Hines argues that the district court erred in determining that even if Jefferson

violated K.S.’s constitutional rights, she is entitled to qualified immunity. Hines

claims that Jefferson’s use of force was so obviously disproportionate that no

reasonable officer could have believed her actions were constitutional. We

disagree.


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       There are two ways for a plaintiff to show that the law clearly established

that certain conduct was excessive force. Stephens v. DeGiovanni, 852 F.3d 1298,

1315 (11th Cir. 2017). “The first is to point to a ‘materially similar case [that has]

already decided what the police officer was doing was unlawful.’” Lee v. Ferraro,

284 F.3d 1188, 1199 (11th Cir. 2002) (quoting Willingham v. Loughnan, 261 F.3d

1178, 1187 (11th Cir. 2001)). The second method is to show that the officer’s

conduct “lies so obviously at the very core of what the Fourth Amendment

prohibits that the unlawfulness of the conduct was readily apparent to the officer,

notwithstanding the lack of fact-specific case law.” Stephens, 852 F.3d at 1315

(quoting Fils v. City of Aventura, 647 F.3d 1272, 1291 (11th Cir. 2011). The

second method is “known as ‘obvious clarity.’” Id. (quoting Fils, 647 F.3d at

1291). Hines’s argument that qualified immunity does not apply rests exclusively

on obvious clarity.2

        “To come within the narrow exception” of obvious clarity, “a plaintiff must

show that the official’s conduct ‘was so far beyond the hazy border between

excessive and acceptable force that [the official] had to know he was violating the

Constitution even without caselaw on point.’” Priester v. City of Riviera Beach,


       2
         Deputy Jefferson argues that Hines has abandoned any argument that Deputy
Jefferson’s conduct was contrary to clearly established law, including any obvious-clarity
argument, by failing to raise it on appeal. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d
678, 681–82 (11th Cir. 2014) (issues not raised in an appellant’s initial brief are abandoned).
Although Hines’s discussion of obvious clarity is undoubtedly brief, we find that Hines has said
enough to avoid abandoning the argument on appeal.
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208 F.3d 919, 926 (11th Cir. 2000) (quoting Smith v. Mattox, 127 F.3d 1416, 1419

(11th Cir. 1997)). To be clear, “[u]nder this test, the law is clearly established, and

qualified immunity can be overcome, only if the standards set forth in Graham and

our own case law ‘inevitably lead every reasonable officer in [the defendant’s]

position to conclude the force was unlawful.’” Lee, 284 F.3d at 1199 (quoting

Priester, 208 F.3d at 926). In Priester, we found this standard met where a suspect

who had allegedly stolen roughly $20 of snacks submitted immediately to police

and complied with all police instructions—yet the officer allowed his dog to attack

the suspect for at least two minutes. Id. at 927. Similarly, in Lee we found this

standard met where an officer took the arrestee to the back of a car and slammed

the arrestee’s head against the trunk after the person was placed in handcuffs, was

completely secured, and was not resisting. 284 F.3d at 1199.

      Viewed in the light most favorable to K.S., Deputy Jefferson’s conduct,

including placing K.S. in a choke hold and carrying her to the office by her neck,

does not fall within the narrow obvious-clarity exception. K.S. had been involved

in a fistfight with another student. School officials attempted to break up the fight,

and Deputy Jefferson picked K.S. up by placing her forearms around K.S.’s neck

and escorted her to Deputy Jefferson’s office. It is undisputed that during this

time, K.S. was “squirming, wiggling, twisting, [and] turning” to get away from

Deputy Jefferson, and upon reaching the office Deputy Jefferson released K.S.


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Given these facts, it cannot be said that Deputy Jefferson’s use of force was so

grossly disproportionate to the situation that every reasonable officer in Deputy

Jefferson’s position would inevitably conclude that the use of force was unlawful.

Id.; see also Stephens, 852 F.3d at 1315 (noting that “[t]he excessive-force ‘area is

one in which the result depends very much on the facts of each case’” (quoting

Brousseau v. Haugen, 543 U.S. 194, 201 (2004))). Further, the medical records

show that the amount of force used was minimal. See Stephens, 852 F.3d at 1325

(“The nature and extent of physical injuries sustained by a plaintiff are relevant in

determining whether the amount and type of force used by the arresting officer

were excessive.”). While K.S. had some neck pain and was given a foam neck

brace, she had no external bruising, she had no problems breathing, and an x-ray of

her neck was normal. Accordingly, we conclude that Deputy Jefferson’s conduct

was not “so far beyond the hazy border between excessive and acceptable force

that [Deputy Jefferson] had to know [she] was violating the Constitution[.]”

Priester, 208 F.3d at 926 (quoting Smith, 127 F.3d at 1419).

B.    Malicious Prosecution

      We have recognized “malicious prosecution as a violation of the Fourth

Amendment and a viable constitutional tort cognizable under § 1983.” Wood v.

Kesler, 323 F.3d 872, 881 (11th Cir. 2003). To establish malicious prosecution

under § 1983, “the plaintiff must prove a violation of [her] Fourth Amendment


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right to be free from unreasonable seizures in addition to the elements of the

common law tort of malicious prosecution.” Id. The elements of the common law

tort of malicious prosecution include: “(1) a criminal prosecution instituted or

continued by the present defendant; (2) with malice and without probable cause;

(3) that terminated in the plaintiff accused’s favor; and (4) caused damage to the

plaintiff accused.” Id. at 882.

      “[T]he existence of probable cause defeats a § 1983 malicious prosecution

claim.” Grider v. City of Auburn, 618 F.3d 1240, 1256 (11th Cir. 2010). Probable

cause is defined as “facts and circumstances sufficient to warrant a prudent man in

believing that the suspect had committed or was committing an offense.” Id. at

1257 (quoting Gerstein v. Pugh, 420 U.S. 103, 111 (1975)). “To receive qualified

immunity,” however, “an officer need not have actual probable cause, but only

‘arguable’ probable cause,” which exists where “reasonable officers in the same

circumstances and possessing the same knowledge as the Defendant[] could have

believed that probable cause existed to arrest Plaintiff.” Id. (first quoting Brown v.

City of Huntsville, 608 F.3d 724, 735 (11th Cir. 2010); then quoting Kingsland v.

City of Miami, 382 F.3d 1220, 1232 (11th Cir. 2004)).

      The district court concluded that Hines’s claims on behalf of K.S. failed

because Deputy Jefferson had probable cause to arrest K.S. for two crimes under




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Georgia law—obstructing an officer and disorderly conduct. We address each in

turn to determine if Deputy Jefferson had probable cause.

      Under Georgia law, a person commits misdemeanor obstruction of an officer

when he “knowingly and willfully obstructs or hinders any law enforcement

officer . . . in the lawful discharge of his or her official duties.” O.C.G.A.

§ 16-10-24(b). Georgia courts have explained that “violence or forcible resistance

is not required to prove” misdemeanor obstruction; “[a]rgument, flight, stubborn

obstinance, and lying are all examples of conduct that may satisfy the obstruction

element.” Pinchon v. State, 516 S.E.2d 537, 538 (Ga. Ct. App. 1999). Again,

Hines does not dispute that K.S. was “squirming, wiggling, twisting, [and] turning”

to get away from Deputy Jefferson as Deputy Jefferson attempted to remove her

from the area of the fight. Hines, instead, argues that K.S. was justified in resisting

arrest. But that argument is misplaced because the question is whether an

objectively reasonable officer in Deputy Jefferson’s situation could have believed

there was probable cause to arrest K.S. The facts, viewed in the light most

favorable to Hines, show that K.S. had recently been in a fistfight and was

physically resisting Deputy Jefferson as she attempted to remove K.S. from the

crowded common area. Thus, a reasonable officer in Deputy Jefferson’s position

could have believed that there was arguable probable cause to arrest K.S. for

obstruction of an officer. See Pinchon, 516 S.E.2d at 538.


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       Alternatively, Hines argues that there was not arguable probable cause to

arrest K.S. for obstruction of an officer because K.S. did not know Deputy

Jefferson was a police officer. However, because the arguable probable cause

inquiry focuses on the officer’s knowledge at the time of the arrest, K.S.’s

knowledge of Deputy Jefferson’s status is irrelevant.3 Grider, 618 F.3d at 1257.

       A person commits disorderly conduct under Georgia law if she “[a]cts in a

violent or tumultuous manner toward another person whereby such person is

placed in reasonable fear of the safety of such person’s life, limb, or health.”

O.C.G.A. § 16-11-39(a)(1). Hines argues that Deputy Jefferson did not have

probable cause to arrest K.S. because Deputy Jefferson’s statements at the school

hearing established that she charged K.S. with disorderly conduct based on K.S.’s

conduct towards her. Furthermore, Hines argues that, regardless, the fight between

K.S. and the other student could not serve as probable cause because K.S. was

defending herself in the fight and the other student was the initial aggressor.

Although K.S. may not have started the fight, it is undisputed that she had been

fighting with another student, punched that student in the face, and was

“squirming, wiggling, twisting, [and] turning” to get away from Deputy Jefferson.


       3
         Moreover, Hines’s contention is undermined by K.S.’s testimony that she recognized
Deputy Jefferson’s uniform as something that she had seen other people wearing around the
school, that she knew the uniform bore the insignia “Newton County,” and that Deputy Jefferson
immediately stated that K.S. was under arrest. Additionally, K.S. stated that while Deputy
Jefferson was taking her to the office, she saw the words “Deputy Jefferson” somewhere on her
uniform.
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It is unclear the extent to which K.S. was still attempting to fight as school officials

were trying to deescalate the situation. In any event, viewing the evidence in the

light most favorable to Hines, it is clear that K.S. was at least somewhat combative

toward Deputy Jefferson and given that K.S. had recently been fighting with

another student, Deputy Jefferson had arguable probable cause to arrest K.S. for

disorderly conduct.

C.    Excessive Corporal Punishment

      Hines claimed in the district court that the Newton County School System is

responsible for allowing Deputy Jefferson to violate K.S.’s rights by applying

excessive corporal punishment. The district court concluded that Hines’s claim

fails because she failed to establish that Deputy Jefferson’s conduct constituted

corporal punishment and failed to meet the requirements for municipal liability

under § 1983 set out by the Supreme Court in Monell v. Department of Social

Services of the City of New York, 436 U.S. 658 (1978). Hines voluntarily

dismissed her case against the school system, so we address this claim only with

respect to Deputy Jefferson.

      The Supreme Court has recognized that “corporal punishment in public

schools implicates a constitutionally protected liberty interest” under the

Fourteenth Amendment. Ingraham v. Wright, 430 U.S. 651, 672 (1977). This

Court has further explained that “excessive corporal punishment, at least where not


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administered in conformity with a valid policy authorizing corporal

punishment . . . may be actionable under the Due Process Clause when it is

tantamount to arbitrary, egregious, and conscience-shocking behavior.” T.W. ex

rel. Wilson v. Sch. Bd. of Seminole Cty., 610 F.3d 588, 598 (11th Cir. 2010)

(quoting Neal ex rel. Neal v. Fulton Cty. Bd. of Ed., 229 F.3d 1069, 1075 (11th Cir.

2000)). The first step in this inquiry is to determine whether the defendant’s

conduct constitutes corporal punishment. Neal, 229 F.3d at 1072. In making this

determination, “[t]he key inquiry is not what form the use of force takes but

whether the use of force is ‘related to [the student’s] misconduct at school

and . . . for the purpose of discipline.’” T.W., 610 F.3d at 598–99 (quoting Neal,

229 F.3d at 1073).

      We have found that a school official engaged in corporal punishment where

the circumstances indicated that the school official’s use of physical force was

intended as punishment. Neal, 229 F.3d at 1072–73. In Neal, a coach hit a

student, who had been fighting with another student, in the head with a weight

lock, blinding him in one eye. Id. at 1071. In concluding that the coach’s action

constituted corporal punishment, we noted that the teacher made his intent to

discipline the student plain by stating, “If you hit him with it, I’ll hit you with it.”

Id. at 1072. Further, we noted that the case was “not one where a teacher used

reasonable force to restore order in the face of a school disturbance and merely


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shoved or grabbed fighting students to separate them.” Id. Indeed, the teacher in

Neal did not even attempt to intervene to break up the fight between the two

students. Id. at 1072–73.

      Construing the facts in the light most favorable to Hines, we agree with the

district court that Jefferson’s use of force against K.S. does not constitute corporal

punishment. Here, in stark contrast to the facts of Neal, there is no such evidence

from which a reasonable jury could conclude that Deputy Jefferson’s conduct was

intended as discipline. Deputy Jefferson intervened immediately after the fight

while various school officials were trying to separate the students. Deputy

Jefferson used force against K.S. to escort K.S. away from D.B. and the crowd of

students that had gathered to watch the fight and to restore order. Furthermore,

Deputy Jefferson released K.S. when they got to her office. Thus, there is nothing

in the record that could support a reasonable inference that Deputy Jefferson’s use

of force was a form of corporal punishment. Accordingly, the district court did not

err in granting summary judgment in favor of Deputy Jefferson on this claim.

                                 IV.   CONCLUSION

      We affirm the grant of summary judgment in favor of Deputy Jefferson.

      AFFIRMED.




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