Ariel Marantes v. Miami-Dade County, et al.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13333
Non-Argument Calendar
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D.C. Docket No. 1:15-cv-21910-MGC
ARIEL MARANTES,
Plaintiff-Appellant,
versus
MIAMI-DADE COUNTY,
RUPERTO PEART,
RUSSELL GIORDANO,
JOSE GONZALEZ,
JORGE RODRIGUEZ,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 28, 2016)
Before HULL, MARTIN, and ANDERSON, Circuit Judges.
PER CURIAM:
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Ariel Marantes appeals from the district court’s dismissal of his amended 42
U.S.C. § 1983 complaint. After careful review, we affirm in part and vacate in part
the district court’s order and remand for further proceedings consistent with this
opinion.
I. BACKGROUND
A. Amended Complaint
In March 2015, Marantes filed an amended complaint in Florida state court,
alleging violations of his federal constitutional rights and state law. He named as
defendants Miami-Dade County and Miami-Dade Police Officers Ruperto Peart,
Russell Giordano, Jose Gonzalez, and Jorge Rodriguez. In May 2015, the
defendants removed Marantes’s amended complaint to federal district court. We
outline the factual allegations in the amended complaint.
Marantes’s amended complaint alleged that, on the afternoon of August 14,
2012, he was at the “Latin American Cafeteria” in Miami, Florida. At some point,
he began “exchang[ing] words” with another man and engaging in the start of a
fistfight. Defendant Officers Peart, Giordano, Gonzalez, and Rodriguez were all
undercover at the cafeteria.
According to the amended complaint, Officer Peart, “[b]elieving a potential
fistfight was going to take place,” lifted Marantes up into the air and then slammed
him twice to the ground. Officer Peart held Marantes to the ground by pushing on
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his back and using a “Carotid Restraint Hold” (choke hold). The temperature that
afternoon was approximately 92 degrees Fahrenheit and the asphalt temperature
was upwards of 130 degrees Fahrenheit. While Marantes was on the ground, he
suffered burns from the hot asphalt and was unable to breathe.
Additionally, Marantes alleged that Officer Giordano kicked him four times
on the head and body while Officer Peart was holding him down. Officers Peart
and Giordano eventually handcuffed him, pulled on his arms, shoved him, and
rolled him onto his stomach, resulting in great pain. All the while, Officer
Gonzalez looked on while smoking a cigar. Marantes stated that he feared for his
life and was pleading with all four of the officers to stop the attack. Onlookers
screamed as they watched the scene.
Marantes claimed that the incident caused renal and other organ failure, a
broken nose, and “other injuries.” He required advanced life support and oxygen.
Marantes maintained that he “posed no threat” and that he did not resist the
officers with violence. He concluded that he did nothing to provoke the
defendants’ actions.
Marantes further explained in the complaint that the Miami-Dade Police
Department falsely arrested him for battery of a police officer and resisting an
officer with violence. The state reduced the charges to one count of resisting arrest
without violence, a misdemeanor offense.
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According to Marantes, the Miami-Dade Police Department and the officers
also acted to cover-up their wrongdoing. Marantes asserted that a bystander used a
cellphone to videotape the officers beating him, but the officers confiscated the
phone and erased the video. Then, the internal investigation process was biased in
favor of the officers because it involved leading and open ended questions meant to
benefit the Miami-Dade Police Department. Marantes claimed that the four
officers who beat him were even involved in a homicide just days before the
August 14, 2012 cafeteria incident.
Marantes alleged that the Miami-Dade Police Department’s internal affairs
process was a policy or custom that encouraged, or at least allowed, officers to use
unlawful force against civilians. He claimed that the investigatory process was
“constitutionally flawed” because there was no standard protocol for questioning
witnesses, and the questions typically asked “preclude[d] independent
investigations and punishment.” Marantes stated that Miami-Dade Police
Department Director J.D. Patterson was the final policymaker and was responsible
for the policy or custom.
Based on these facts, Marantes alleged two Fourth Amendment claims:
(1) Officers Peart and Giordano used excessive force against him; and (2) Officers
Peart, Gonzalez, and Rodriguez failed to intervene when Officer Giordano was
using excessive force. Marantes further claimed that Miami-Dade County had a
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policy or custom of conducting internal affairs investigations in a manner that
ratified police misconduct. His final claim alleged that Miami-Dade County was
liable for battery under state law, based on Officer Peart’s and Officer Giordano’s
actions. As relief, he sought compensatory damages, punitive damages, and costs.
B. Proceedings
After removal, the defendants filed a motion to dismiss the federal claims.1
The defendants argued that the officers were protected by qualified immunity
because there was no constitutional violation and no clearly established law
preventing the use of force to stop an active street fight and subdue a person
resisting arrest. The defendants also asserted that Marantes had failed to allege the
essential elements of a Monell claim.2
In a counter statement of facts, the defendants alleged that Marantes was
actively engaged in a fistfight in the parking lot when Officers Peart and Giordano
intervened. Officer Peart directed Marantes to the ground, but Marantes resisted.
In order to arrest Marantes, Officer Peart placed him in a “choke hold” while
Officer Giordano “issued several distractionary kicks” to make him stop moving
his arms. According to the defendants, once Marantes was in handcuffs, they did
1 The defendants requested that the remaining state law claim be transferred back to state
court.
2 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018 (1978).
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not use any additional force. Marantes pled no contest to resisting without
violence. The defendants filed a certified copy of his criminal judgment.3
Marantes responded to the motion to dismiss, asserting that the facts, as
alleged in the complaint, established clear constitutional violations. He argued that
the district court could not consider the facts alleged in the defendants’ motion to
dismiss. The defendants replied that Marantes failed to carry his burden for the
Fourth Amendment claims and failed to directly address and rebut any of their
arguments for dismissal of the Monell claim.
In a July 2015 order, the district court dismissed Marantes’s Fourth
Amendment and Monell claims, and transferred his battery claim back to Florida
state court. The district court concluded that Marantes failed to carry his burden
with regard to the Fourth Amendment claims against the individual officers
“because his complaint comprise[d] only conclusory allegations and, second,
because he [did] not address any Eleventh Circuit law regarding the use of force on
resisting arrestees.” The district court concluded that Marantes failed to establish
that the officers violated a clearly established right, as this Court has upheld the use
3 The criminal judgment states that Marantes pled no contest to resisting an officer with
violence. However, it cites Florida Statutes § 843.02, which criminalizes resisting an officer
without violence. See Fla. Stat. § 843.02. As the parties agree that the conviction was for
resisting without violence, we assume that the judgment contains a clerical error and Marantes’s
crime of conviction was resisting without violence.
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of force against individuals being arrested even when they are not resisting. Thus,
the individual defendants were entitled to qualified immunity.
The district court also determined that Marantes failed to state a Monell
claim because he had not shown that the officers violated his Fourth Amendment
rights. Alternatively, the district court stated that Marantes did not allege “a
County policy or custom of indifference to constitutional rights.” Marantes filed a
timely notice of appeal.
II. STANDARD OF REVIEW
This Court reviews de novo a district court’s grant of a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6). Edwards v. Prime Inc., 602 F.3d
1276, 1291 (11th Cir. 2010). Although a plaintiff’s complaint need not provide
detailed factual allegations, the basis for relief in the complaint must state “more
than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct.
1955, 1964-65 (2007) (citation omitted). The complaint must introduce facts that
plausibly establish each essential element of the asserted cause of action. See
Simpson v. Sanderson Farms, Inc., 744 F.3d 702, 713 (11th Cir. 2014) (affirming
the dismissal of a complaint for failure to establish essential elements of the
asserted cause of action). At the dismissal stage, we “accept as true the facts as set
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forth in the complaint and draw all reasonable inferences in the plaintiff’s favor.”
Randall v. Scott, 610 F.3d 701, 705 (11th Cir. 2010).
III. FOURTH AMENDMENT CLAIMS
The Fourth Amendment prohibits officers from using excessive force when
conducting an arrest. See Graham v. Connor, 490 U.S. 386, 394, 109 S. Ct. 1865,
1871 (1989). Courts examine the objective reasonableness of the force in light of
the particular circumstances of the case in order to determine whether the force
was excessive. See id. at 396-97, 109 S. Ct. at 1871-72. We recognize, however,
“that the typical arrest involves some force and injury.” Rodriguez v. Farrell, 280
F.3d 1341, 1351 (11th Cir. 2002).
“Qualified immunity protects government officials performing discretionary
functions from suits in their individual capacity unless their conduct violates
clearly established statutory or constitutional rights of which a reasonable person
would have known.” Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003)
(quotation marks omitted). Once an officer establishes that he was acting within
his discretionary authority, the burden shifts to the plaintiff to show that the officer
violated a (1) constitutional or statutory right (2) that was clearly established at the
time of the incident. McCullough v. Antolini, 559 F.3d 1201, 1205 (11th Cir.
2009).
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A right may be clearly established by: (1) “case law with indistinguishable
facts”; (2) “a broad statement of principle within the Constitution, statute, or case
law”; or (3) “conduct so egregious that a constitutional right was clearly violated.”
Lewis v. City of W. Palm Beach, 561 F.3d 1288, 1291-92 (11th Cir. 2009). The
case law must come from a “materially similar case” already decided by the U.S.
Supreme Court, this Court, or the highest state court in the state in which the case
arose. Terrell v. Smith, 668 F.3d 1244, 1255-56 (11th Cir. 2012) (quotation marks
omitted).
Taking Marantes’s version of the facts in the amended complaint, we
conclude that the district court erred in dismissing the amended complaint against
Officer Giordano, who allegedly kicked and beat Marantes after he was restrained,
but did not err in dismissing the other officers.
A. Excessive Force—Officer Peart
First, Marantes failed to show that Officer Peart violated a clearly
established right during the arrest. Marantes acknowledges that he was engaged in
a fistfight, however briefly, when Officer Peart approached him to intervene. In
order to end the fight and arrest Marantes, Officer Peart knocked Marantes to the
ground and subdued him by holding him down and employing a choke hold. Once
Marantes was in handcuffs, Officer Peart moved Marantes to his stomach and
pulled on his arms. We believe that the force employed by Officer Peart did not
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exceed the degree of force that comes with every arrest, particularly when the
arrestee was exhibiting violence moments earlier. See Rodriguez, 280 F.3d at
1351. Again, Marantes’s amended complaint concedes that he was in a fistfight on
the street.
Furthermore, in Post v. City of Fort Lauderdale, 7 F.3d 1552, 1555-56,
1559-60 (11th Cir. 1993), this Court held that an officer did not violate clearly
established law by pushing a man, standing with his hands up after being arrested
for a building code violation, against a wall, putting him in a choke hold, and then
handcuffing him. Officer Peart’s use of force in the instant case was roughly
equivalent to the force used by the officer in Post and was significantly more
reasonable because Marantes had engaged in a more violent crime than violating a
building code. See Graham, 490 U.S. at 396-97, 109 S. Ct. at 1871-72. Even
assuming that Officer Peart’s conduct violated the Fourth Amendment, in light of
binding precedent such as Post, Officer Peart was not on notice that he was acting
unlawfully. Moore v. Pederson, 806 F.3d 1036, 1046-47 (11th Cir. 2015) (“The
touchstone of qualified immunity is notice. . . . [A] reasonable official [must]
understand that his conduct violates that right.” (citation omitted)).
We likewise cannot locate any clearly established law that would have
informed Officer Peart that restraining an arrestee on hot pavement violates the
Fourth Amendment. Not every reasonable officer would have known that the
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pavement was hot enough to cause injurious burns, and the complaint provides no
indication that Marantes informed any of the officers that the pavement was
burning him. Thus, this was not “conduct so egregious” that it would be obvious
to an officer that he was using unlawful force.4 See Lewis, 561 F.3d at 1292.
B. Excessive Force—Officer Giordano
The district court erred, however, in dismissing Marantes’s excessive force
claim against Officer Giordano. In his complaint, Marantes alleged that Officer
Giordano kicked him “about the head and body” while he was “restrained” by
Officer Peart. Officer Peart was holding him against the ground by pressing on his
back and using a choke hold. Marantes claimed that he was “pleading for help”
while he was being kicked. He stated that he never made “any threat of force.”
The interaction resulted in serious injuries, including organ failure, which
necessitated life support.
The district court granted Officer Giordano qualified immunity after finding
that Marantes never alleged that the defendants “used any force on him after he
was subdued.” The court primarily characterized Marantes as a “resisting
arrest[ee],” but stated based on Post, that even if Marantes was not resisting at all,
Officer Giordano’s actions did not violate a clearly established right.
4 To the extent that Marantes alleged that Officer Giordano also pulled on his handcuffed
arms or rolled him over, Officer Giordano was protected by qualified immunity for the same
reasons as Officer Peart.
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There are two problems with the district court’s analysis. First, regarding
Marantes’s allegations as true and drawing all reasonable inferences in his favor,
Marantes alleged that Officer Giordano kicked him after he was subdued.
Marantes claimed that Officer Peart was restraining him and holding him to the
ground when Officer Giordano issued the kicks. Once he was on the pavement,
there is no indication in the complaint that Marantes was resisting, with or without
violence. Second, Post does not settle the qualified immunity question because
Officer Giordano did much more than push Marantes. Officer Giordano kicked
Marantes four times on the head and body with enough force to cause injuries
warranting life support. Officer Giordano’s use of force far surpassed the shoving
and choke hold at issue in Post.
While the defendants argue that Marantes’s conviction for resisting without
violence compels us to conclude that Marantes was resisting arrest at the time that
Officer Giordano kicked him, the defendants are mistaken. In Hadley v. Gutierrez,
526 F.3d 1324, 1332 (11th Cir. 2008), this Court held that, when a person pleads
guilty to resisting arrest in Florida and later files a civil suit alleging excessive
force in the course of the arrest, the excessive force claim is not barred by
collateral estoppel. This Court explained that a conviction for resisting arrest is
non-specific and does not necessarily reveal anything about whether the arrestee
was resisting during or after the challenged use of force. See id. Thus, we are free
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to—and indeed must—look to the allegations in the amended complaint as to the
timing of the resistance in relation to the allegedly excessive force.
Having established that Marantes’s amended complaint, when properly
construed in his favor, states that he was subdued and asking for help at the time
Officer Giordano kicked him four times, we must conclude that there was a
constitutional violation. See, e.g., Edwards v. Shanley, 666 F.3d 1289, 1296 (11th
Cir. 2012) (holding that there was excessive force when an officer allowed his dog
to continue attacking a fleeing suspect after the suspect was “laying [sic] prone
with his hands exposed and begging to surrender” and the officer could have safely
arrested the suspect, and explaining that the officer “increased the force applied at
the same time the threat presented by [the suspect] decreased”). Moreover, using
injurious force on a suspect who does “not pose a threat of bodily harm to the
officers or anyone else” at the time of arrest, and who is not “attempting to flee or
to resist arrest,” is “conduct so egregious that a constitutional right [is] clearly
violated” even in the absence of factually similar case law. See Priester v. City of
Riviera Beach, 208 F.3d 919, 927 (11th Cir. 2000); see also Lewis, 561 F.3d at
1292.
Based on the facts in the amended complaint, Officer Giordano was not
entitled to qualified immunity for repeatedly kicking Marantes after Officer Peart
had him already restrained. On remand, the district court is ordered to reinstate
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Marantes’s claim that Officer Giordano violated the Fourth Amendment by kicking
him during the course of the arrest.
C. Failure to Intervene
“[A]n officer who is present at the scene and who fails to take reasonable
steps to protect the victim of another officer’s use of excessive force, can be held
liable for his nonfeasance.” Skrtich v. Thorton, 280 F.3d 1295, 1302 (11th Cir.
2002). For liability to attach, the plaintiff must show “that the non-intervening
officer was in a position to intervene yet failed to do so.” Hadley, 526 F.3d at
1331. Whether the officer had time to intervene is a relevant consideration. See
Priester, 208 F.3d at 925 (reversing a judgment in favor of the defendant on a
failure-to-intervene claim after concluding that the defendant “had time to
intervene” but failed to do so).
Having already decided that Officer Giordano’s use of force was excessive,
we now must determine whether any of the other officers had time and were in a
position to intervene. See Hadley, 526 F.3d at 1331. Marantes alleged that Officer
Peart was holding him down when Officer Giordano kicked him and that Officer
Gonzalez observed the arrest while smoking a cigar. Drawing all reasonable
inferences in Marantes’s favor, it still appears that Officer Giordano kicked him
four times in rapid succession without warning, which would leave insufficient
time for any of the other officers to issue a verbal command or physically prevent
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Officer Giordano from that kicking. At a minimum, Marantes did not allege any
facts that would allow us to conclude that the officers had time and were in a
position to intervene. See Priester, 208 F.3d at 925. Therefore, the district court
properly dismissed Marantes’s failure-to-intervene claim.
IV. MONELL CLAIM
To state a Monell claim, a plaintiff must allege facts showing: “(1) that his
constitutional rights were violated; (2) that the municipality had a custom or policy
that constituted deliberate indifference to that constitutional right; and (3) that the
policy or custom caused the violation.” McDowell v. Brown, 392 F.3d 1283, 1289
(11th Cir. 2004). The Supreme Court has explained that the custom or policy must
be the “moving force” behind the constitutional deprivation for there to be
sufficient causation. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-94, 98 S.
Ct. 2018, 2035-38 (1978).
“A custom is a practice that is so settled and permanent that it takes on the
force of law.” Sewell v. Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir.
1997). To establish the existence of a custom, the plaintiff must show a
“longstanding and widespread practice.” Craig v. Floyd Cty., 643 F.3d 1306, 1310
(11th Cir. 2011) (quotation marks omitted). Thus, “[a] single incident of a
constitutional violation is insufficient to prove a policy or custom even when the
incident involves several employees of the municipality.” Id. at 1311.
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“[C]onsiderably more proof” is necessary. See Oklahoma City v. Tuttle, 471 U.S.
808, 824, 105 S. Ct. 2427, 2436 (1985) (“But where the policy relied upon is not
itself unconstitutional, considerably more proof than the single incident will be
necessary in every case . . . .”).
As an initial matter, Marantes challenges only one of the district court’s two
grounds for dismissing his Monell claim. While he argues that the district court
erred by finding that there was no constitutional violation on which to premise
Monell liability, he has not attacked the district court’s alternative ruling that he
failed to allege a policy or custom. Under our case law, the judgment is due to be
affirmed on the unchallenged ground. Sapuppo v. Allstate Floridian Ins. Co., 739
F.3d 678, 680 (11th Cir. 2014) (“When an appellant fails to challenge properly on
appeal one of the grounds on which the district court based its judgment, he is
deemed to have abandoned any challenge of that ground, and it follows that the
judgment is due to be affirmed.”).
In any event, the district court’s judgment is correct on the merits. Even
though we agree that Marantes sufficiently pled a constitutional violation, he did
not show that Miami-Dade County had a custom or policy of encouraging
excessive force, or that the custom or policy caused his injury.
Marantes has not cited a policy directly encouraging excessive force; rather,
he contends that the Miami-Dade County Police Department’s internal affairs
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process is ineffective, which in turn sends an implicit message to police officers
that they can abuse civilians without punishment. Marantes has pointed to only
one incident, however, to show that the internal affairs process was ineffectual by
custom—his own experience. And, even broadly construing the amended
complaint, he has cited only two incidences of alleged excessive force—his arrest
and a homicide involving the same set of officers who arrested him. These
allegations do not show that the County had a “longstanding and widespread
practice” of encouraging excessive force. See Tuttle, 471 U.S. at 824, 105 S. Ct. at
2436; Craig, 643 F.3d at 1310. Nor do they show that the alleged custom was the
“moving force” behind Officer Giordano kicking Marantes’s head and body. See
Monell, 436 U.S. at 690-94, 98 S. Ct. at 2035-38. The district court properly
dismissed the Monell claim.
V. AMENDMENT
Marantes cites Friedlander v. Nims, 755 F.2d 810, 813 (11th Cir. 1985), and
asserts that a district court must “give a plaintiff an opportunity to amend his
complaint rather than dismiss it when it appears that a more carefully drafted
complaint might state a claim upon which relief could be granted.” While this rule
still applies to pro se litigants, Marantes has counsel, and this Court sitting en banc
has abrogated Friedlander by providing that “[a] district court is not required to
grant a plaintiff leave to amend his complaint sua sponte when the plaintiff, who is
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represented by counsel, never filed a motion to amend nor requested leave to
amend before the district court.” Wagner v. Daewoo Heavy Indus. Am. Corp., 314
F.3d 541, 542 (11th Cir. 2002) (en banc) (emphasis added). Therefore, the district
court did not err by dismissing Marantes’s claims without sua sponte ordering him
to re-plead his amended complaint.
We also note that, even if Marantes were proceeding pro se, he still would
not have had a clear right to amend his complaint sua sponte. Marantes already
amended his complaint while his action was in state court, and our case law does
not require a district court to give a pro se litigant multiple opportunities to amend.
See Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991) (“[A] plaintiff must be
given at least one chance to amend the complaint before the district court dismisses
the action with prejudice.”), abrogated by Wagner, 314 F.3d 542.
VI. CONCLUSION
We affirm the district court’s dismissal of Marantes’s Monell claim against
Defendant Miami-Dade County and his Fourth Amendment claims against
Defendant Officers Peart, Gonzalez, and Rodriguez. However, we vacate the
district court’s dismissal of Marantes’s Fourth Amendment claim that Officer
Giordano used excessive force by kicking him during the arrest. The district court
shall reinstate this claim against Officer Giordano, in addition to the state law
claim against Miami-Dade County over which it continues to have supplemental
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jurisdiction, and resume the proceedings. We express no opinion on the state law
claim or the ultimate outcome of Marantes’s case.5
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
5 While Marantes stated in the amended complaint that the officers destroyed a
bystander’s video recording of the incident, he suggests in a later filing that there is at least one
surviving video, which is not part of the record. This video, when and if filed, could possibly
help clarify which party’s statement of facts is true, but it is not in this record and we cannot
consider it.
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