Kenneth Patrick Quinlan v. City of Pensacola, et al

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 22, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-10665
Non-Argument Calendar
________________________
D.C. Docket No. 3:07-cv-00419-RV-MD
KENNETH PATRICK QUINLAN,
Plaintiff-Appellant,
versus
CITY OF PENSACOLA,
JOHN MATHIS, Chief of Police,
JOHN DOE, Public Safety Director,
DANA LISCO, Police Officer,
KEVIN CHRISTMAN, Police Officer, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(December 22, 2011)
Before CARNES, WILSON and BLACK, Circuit Judges.

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PER CURIAM:
Kenneth Patrick Quinlan, a Florida state prisoner proceeding pro se, appeals
following the entry of final judgment on his claims under 42 U.S.C. § 1983 and
Florida law. Quinlan brought suit against the City of Pensacola (“City”),
Pensacola Chief of Police John Mathis (“Chief Mathis”), and Police Officers Dana
Lisco, Tom Lyter, James Gore, and Kevin Christman, alleging that violations of
his constitutional rights occurred during an encounter with Officer Christman’s K-
9 unit following a traffic stop. On appeal, Quinlan argues that the district court
erred by (1) exhibiting a pervasive bias against him at trial, (2) refusing to allow
him to contest the existence of probable cause to execute the initial traffic stop,
and (3) granting judgment as a matter of law in favor of the City and Chief Mathis.
I.
We liberally construe pro se arguments on appeal. Tannenbaum v. United
States, 148 F.3d 1262, 1263 (11th Cir. 1998). To determine if a district court judge
gave the appearance of partiality or bias at trial, we review the judge’s conduct
during trial for abuse of discretion. See United States v. Verbitskaya, 406 F.3d
1324, 1337 (11th Cir. 2005). However, if not raised and preserved before the
district court, we review a claim of perceived bias or partiality for plain error. See
United States v. Rodriguez, 627 F.3d 1372, 1377-80 (11th Cir. 2010). “Plain error
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occurs where (1) there is an error; (2) that is plain or obvious; (3) affecting . . .
substantial rights in that it was prejudicial and not harmless; and (4) that seriously
affects the fairness, integrity, or public reputation of the judicial proceedings.”
United States v. Raad, 406 F.3d 1322, 1323 (11th Cir. 2005) (citation and
quotation omitted).
Quinlan argues the district court judge exhibited a bias against him by (1)
communicating ex parte with defense counsel about Quinlan’s motion for the
issuance of a subpoena decues tecum, (2) denying his request for an order1
directing Chief Mathis to be present at trial, (3) refusing to give Quinlan extra time
to review certain documents prior to trial, (4) telling the jury not to take notes
because of the relative simplicity of the case, (5) instructing the jury about a
disputed force report, (6) telling the jury that probable cause was not at issue
during the trial, (7) disclosing Quinlan’s criminal conviction while explaining why
probable cause was not at issue, (8) interrupting Quinlan during witness
examination and telling him to speed up, (9) raising the issue of punitive damages
and asking defense counsel whether the defendants had moved for directed verdict
on the claim for punitive damages, and (10) granting judgment as a matter of law
According to Quinlan, the district court judge remarked that defense counsel had1
informed him ex parte that the defendants would not oppose Quinlan’s subpoena duces tecum
request.
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in favor of the defendants.
“[R]ulings adverse to a party” do not constitute pervasive bias. Hamm v.
Members of Bd. of Regents of State of Fla., 708 F.2d 647, 651 (11th Cir. 1983)
(citations omitted). Moreover, “[w]hile a trial judge . . . has a duty to conduct the
trial carefully, patiently, and impartially, the judge has wide discretion in
managing the proceedings.” United States v. Hawkins, 661 F.2d 436, 450 (11th
Cir. 1981) (citation and quotation omitted). To constitute reversible error, “a
judge’s remarks must demonstrate such pervasive bias and unfairness that they
prejudice one of the parties.” Verbitskaya, 406 F.3d at 1337 (citations omitted).
All of the alleged manifestations of pervasive bias either (1) amount to
adverse rulings, (2) fall within the district court’s “wide discretion in managing the
proceedings,” or (3) are otherwise insufficient to demonstrate “such pervasive bias
and unfairness that they prejudice[d]” Quinlan. Accordingly, Quinlan has not
shown that the district court exhibited a pervasive bias against him.
II.
Quinlan next argues the district court erred in refusing to allow him to
contest the police officers’ assertions that they had probable cause to execute the
initial traffic stop. Following the Supreme Court’s decision in Heck v. Humphrey,
512 U.S. 477 (1994), this Court has made clear that a prisoner cannot bring a civil
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rights claim for damages under § 1983 “if the adjudication of the civil action in the
plaintiff’s favor would necessarily imply that his conviction or sentence was
invalid unless the plaintiff can demonstrate that the conviction or sentence has
already been invalidated.” Morrow v. Fed. Bureau of Prisons, 610 F.3d 1271,
1272 (11th Cir. 2010).
Quinlan argues the district court erred in applying Heck to his § 1983 claims
because he never had the “opportunity to litigate issues of probable cause to stop
his vehicle for felony fleeing and attempting to elude, speeding, nor felony battery
on LEO K-9/horse.” Quinlan concedes, however, that he pled nolo contendere to
resisting an officer without violence, which requires a finding that the officer
acted “in the lawful execution of any legal duty.” Fla. Stat. § 843.02. Because a
plea of nolo contendere constitutes a conviction under Florida law, Fla. Stat.
§ 960.291(3), a finding that the officers did not have probable cause would imply
the invalidity of Quinlan’s conviction for resisting an officer without violence.
Accordingly, the district court did not err.
III.
Although Quinlan does not explicitly identify any additional issues, his
brief, construed liberally, raises two additional arguments. First, Quinlan argues
the district court erred by granting judgment as a matter of law in favor the City
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and Chief Mathis on his claim that they failed to train or supervise the police
officers involved in the incident. A municipality is “liable under § 1983 when its2
employees cause a constitutional injury as a result of the municipality’s policy – or
custom-based failure to adequately supervise its employees.” Am. Fed’n of Labor
and Congress of Indus. Orgs. v. City of Miami, 637 F.3d 1178, 1188 (11th Cir.
2011) (citation omitted). But “the inadequacy of police training may serve as the
basis for § 1983 liability only where the failure to train amounts to deliberate
indifference to the rights of persons with whom the police come into contact.”3
Id. (citation omitted). Here, the district court did not err in granting judgment as a
matter of law because Quinlan failed to show (1) the requisite causal link between
any policy or custom-based failure and his alleged injuries, and (2) any “deliberate
indifference” to his constitutional rights.
Second, Quinlan argues the district court erred by allowing the defendants
to submit a fraudulent use of force report to the jury. He fails to provide any
support, however, for the claim that the report was actually fraudulent.
In isolated references distributed throughout his initial brief, Quinlan also notes his2
disagreement with virtually every other judgment as a matter of law issued by the district court.
Although Quinlan is a pro se litigant, his challenges to these judgments are deemed waived
because he provided only passing references to them in his initial brief. See Timson v. Sampson,
518 F.3d 870, 874 (11th Cir. 2008).
The same “deliberate indifference” standard applies where a police chief is alleged to3
have failed to train or supervise subordinates. Bruce v. Beary, 498 F.3d 1232, 1248-49 (11th Cir.
2007).
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Accordingly, the district court did not err.
AFFIRMED.
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