Altagracia Banuchi v. City of Homestead, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12375
Non-Argument Calendar
____________________
ALTAGRACIA BANUCHI,
as Personal Representative of the Estate of
Edward Blanton Foster III, and o.b.o. the
Estate of Edward Blanton Foster III and the
survivors of the Estate, E.F., J.F., A.D.F., N.F.,
M.F., and A.B.F.,
Plaintiff-Appellant,
versus
CITY OF HOMESTEAD,
ANTHONY GREEN,
individually and as an employee of the City
of Homestead,
Defendants-Appellees.
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2 Opinion of the Court 22-12375
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-25133-RNS
____________________
Before NEWSOM , L UCK , and ANDERSON, Circuit Judges.
PER C URIAM :
This case arises out of the tragic shooting of Edward Blanton
Foster III by City of Homestead police officer Anthony Green. On
behalf of Foster’s estate, Altagracia Banuchi, the personal repre-
sentative, appeals the district court’s summary judgment for the
City and Green in this section 1983 excessive force action. Banuchi
raises three issues on appeal. First, she contends that the district
court erroneously weighed the evidence in favor of Green when it
granted summary judgment. Second, she argues that her first
amended complaint should not have been dismissed because she
properly set forth a Monell claim against the City. And third, she
asserts that the district court abused its discretion in denying her
leave to amend her Monell claim in a third amended complaint. Af-
ter careful review, we affirm.
FACTUAL BACKGROUND
Green was on duty and in uniform on July 16, 2015, when
dispatch alerted him that a 911 caller had just reported that a “light-
skinned male” in red basketball shorts and a white or black shirt
was carrying a firearm and walking east through a city park. As
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22-12375 Opinion of the Court 3
Green approached the area, he saw Foster, a light-skinned black
male wearing a black shirt and red basketball shorts. Foster ap-
peared nervous and agitated. He walked at a quick pace and re-
peatedly looked over his left shoulder, with the left side of his
shorts hanging “way down” from the weight of “something very
heavy.” In Green’s experience, the manner in which Foster’s shorts
sagged indicated that he was likely carrying a firearm. Green pulled
up to Foster in his police car, with both front windows rolled down,
drew his firearm, pointed it at Foster through his windshield from
the driver’s seat, and yelled, “Let me see your hands, put your
hands up, let me see your hands, let me see your hands.” Foster
“immediately” retrieved a firearm from his left side waistband, ac-
cording to Green. Foster then pivoted towards Green, bringing the
gun up towards Green, when suddenly Foster became startled and
took off running.
Green says Foster carried his firearm in his right hand while
he ran away. As Green drove after Foster, he yelled out of the win-
dow, “Stop, drop the gun, stop, drop the gun, drop the gun.”
While continuing to run, Foster made eye contact with Green and
began to raise his firearm across his body. As soon as Foster
pointed his firearm at Green, Green fired eight rounds at Foster.
Green says he stopped firing as soon as he saw Foster’s legs start to
buckle. Seconds later, Green heard Foster’s firearm hit the ground.
Green exited his car with his gun drawn and positioned himself be-
hind the engine area of his car before radioing for backup. Green
advised over the radio, “Shots fired. Subject down with a gun.”
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4 Opinion of the Court 22-12375
Daryl Mays, another Homestead police officer, arrived at
the scene at that time. Mays did not see Green shoot Foster, but
he saw Foster fall to the ground just as he approached the scene.
Mays noticed the gun on the ground beside Foster and kicked it
away so Foster could not reach it.
Mays handcuffed Foster while Green radioed for medical
support, but when Green and Mays noticed Foster was having dif-
ficulty breathing, they took him out of the handcuffs and adminis-
tered aid. While Green performed CPR, Foster became nonre-
sponsive. Paramedics arrived shortly after and transported Foster
to a hospital.
The Miami-Dade State Attorney’s Office and the Miami-
Dade Police Department began investigating the incident that
month, July 2015, to determine whether Green violated Florida
law.
PROCEDURAL HISTORY
Banuchi filed her first lawsuit against the City and Green
two years later, on July 17, 2017, in state court. The City and Green
later removed that action to federal court on September 11, 2018.
Then, on April 9, 2020, Banuchi voluntarily dismissed the action to
wait until the Miami-Dade State Attorney’s Office and Miami-Dade
Police Department completed their investigations into Green’s
shooting.
Before the completion of the investigations, Banuchi filed a
second action in state court, alleging only state law claims against
the City and Green, on July 29, 2020. Banuchi filed this second
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22-12375 Opinion of the Court 5
action “in an abundance of caution” to ensure that this complaint,
which she said was the “same complaint” already filed in federal
court, was not “jurisdictionally out-of-time.”
The Miami-Dade State Attorney and the Miami-Dade Police
Department ended their investigations on October 6, 2020.
The following month, Banuchi moved to reopen her first
lawsuit, now in federal court, on November 11, 2020. Banuchi also
amended the complaint in her state court action on December 10,
this time asserting federal section 1983 claims. The following
week, on December 16, the City and Green removed Banuchi’s sec-
ond action to federal court. Then, on January 8, 2021, the district
courts adjudicating the two actions agreed to transfer the later-filed
federal action to the first district court because both actions had
“the same subject matter and defendants.”
In her first amended complaint from December 10, Banuchi
raised ten counts. She raised three federal claims—Fourth and
Fourteenth Amendment claims under section 1983—against the
City (counts IV and V) and Green (count I). She raised seven state
law claims: assault and battery claims against the City (count VI)
and Green (count II); state law false imprisonment claims against
the City (count VII) and Green (count III); a claim for negligent use
of a firearm against the City (count VIII); and negligent training and
supervision against the City (count IX). And finally, Banuchi al-
leged a state law wrongful death claim against both the City and
Green (count X).
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The City and Green moved to dismiss Banuchi’s complaint.
They argued that: Green was entitled to qualified immunity as to
Banuchi’s Fourth and Fourteenth Amendment claims; Banuchi
failed to properly raise a Monell claim against the City; her state law
claims were time-barred or improperly alleged; and her complaint
was a shotgun pleading.
The district court dismissed all counts with prejudice except
for two claims: Banuchi’s section 1983 Fourth Amendment claim
against Green—which it left intact—and her state wrongful death
claim against the City and Green—which it dismissed without prej-
udice. For her Fourth Amendment claim, the district court con-
cluded that Banuchi met her burden at that stage to show that
Green was not entitled to qualified immunity. As to Banuchi’s state
wrongful death claim, the district court advised Banuchi that she
could amend her complaint to replead this claim in a “discrete and
succinct manner such that [the City and Green] have fair notice of
the claims against them.”
Banuchi timely filed her second amended complaint, re-
pleading the state wrongful death claim. But nine days later, Ba-
nuchi moved for reconsideration, clarification, and leave to file a
third amended complaint. Banuchi explained she needed to file a
third amended complaint to allege additional instances disclosed
through discovery where Green used excessive force on the job
and which she said the City never “fully investigated.” She also
asked the district court to reconsider and clarify (1) its order requir-
ing that she reallege the state wrongful death claim in only one
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22-12375 Opinion of the Court 7
count, and (2) its order dismissing her Monell claims against the
City.
The district court denied Banuchi’s motion “in its entirety.”
In denying her requests for reconsideration and clarification, the
district court explained that nothing in this case warranted such an
“extraordinary remedy.” Rather, Banuchi (1) failed to allege facts
that would allow the district court to infer a municipal policy,
(2) asserted arguments plainly belied by the record, and (3) pro-
vided no legal basis to warrant either reconsideration or a clarifica-
tion. In denying her motion for leave to file a third amended com-
plaint, the district court explained that Banuchi failed to show good
cause under Federal Rule of Civil Procedure 16(b) to obtain the
right to amend, and failed to show the requisite diligence. Because
Banuchi did not demonstrate why the new evidence she wished to
cite in her third amended complaint was unavailable to her before
the passing of the deadline to amend, and because the evidence had
been “readily available” for years through public record or discov-
ery requests, the district court denied her motion for leave to
amend.
Later, the district court granted summary judgment in favor
of the City and Green. Two counts remained before the district
court at this stage: a section 1983 claim alleging excessive force
against Green under the Fourth Amendment, and a state-law
wrongful death claim asserted against Green and the City. As to
the Fourth Amendment claim, the district court determined Green
was entitled to qualified immunity because (1) Green was “acting
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8 Opinion of the Court 22-12375
within the scope of his discretionary authority when the allegedly
wrongful act occurred,” and (2) Banuchi failed to carry her burden
to show that Green’s conduct “violated a constitutional right.”1
As to Banuchi’s state-law wrongful-death claims, the district
court concluded that both Green and the City were immune under
Florida law. Banuchi failed to identify “any” action taken by Green
that amounted to “bad faith or with malicious purpose or in a man-
ner exhibiting wanton and willful disregard of human rights, safety,
or property.” Similarly, Banuchi’s state-law wrongful death claim
against the City was barred under Florida law because Banuchi
failed to show that Green’s use of force was unreasonable under
the circumstances. Florida law, the district court explained, pro-
vides that “an officer who ‘reasonably believes’ his use of force is
‘necessary to defend himself or herself or another from bodily
harm while making [an] arrest” is afforded a complete defense to
an excessive force claim. The district court concluded that Green
was entitled to a complete defense because Banuchi did not rebut
Green’s evidence that Foster gave flight, refused to comply with
Green’s commands, and pointed a gun at Green. And since Green
was entitled to a complete defense, the City was also entitled to a
complete defense.
1
The district court did not reach the third qualified-immunity question as to
whether Banuchi showed that the constitutional right was clearly established
at the time of the violation because the district court concluded that Green did
not violate a constitutional right.
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STANDARD OF REVIEW
We review an order on a motion to dismiss de novo. See
Sebastian v. Ortiz, 918 F.3d 1301, 1307 (11th Cir. 2019). “We review
de novo a grant of summary judgment.” Buckley v. Sec’y of Army,
97 F.4th 784, 792 (11th Cir. 2024). A district court’s decision to deny
leave to amend is reviewed for abuse of discretion. Smith v. Duff
and Phelps, Inc., 5 F.3d 488, 493 (11th Cir. 1993).
DISCUSSION
On appeal, Banuchi argues that the district court erred by:
improperly weighing the evidence in favor of Green and the City
when it granted them summary judgment; dismissing Banuchi’s
Monell claim in her first amended complaint; and denying her leave
to amend her Monell claim in a third amended complaint. We ad-
dress each issue below.
A.
Banuchi contends that the district court misapplied the sum-
mary judgment standard by weighing the evidence in Green and
the City’s favor. She argues that the testimony of several witnesses
who did not notice a gun in Foster’s hands proves that Foster did
not have a gun, and therefore, he could not have pointed it at
Green. Thus, Banuchi says, because the district court must weigh
the evidence in her favor, the district court erred by granting sum-
mary judgment for the City and Green.
Summary judgment is appropriate where the evidence es-
tablishes that there is no genuine dispute as to any material fact and
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10 Opinion of the Court 22-12375
the movant is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a). A district court must, on summary judgment, analyze the
evidence and inferences in the light most favorable to the nonmov-
ing party; here, Banuchi. See Skop v. City of Atlanta, 485 F.3d 1130,
1136 (11th Cir. 2007). At the same time, Rule 56 does not require
the district court to regard “mere allegations or denials” as a genu-
ine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). Rather, the nonmoving party must present “spe-
cific facts showing a genuine issue for trial” to overcome a finding
of summary judgment against her. Id. And where a district court
could not find in the nonmovant’s favor after reviewing the com-
plete record, there is no genuine issue for trial. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Here, the evidence showed that Foster was a threat of seri-
ous harm to Green and others. See Brosseau v. Haugen, 543 U.S. 194,
197-98 (2004) (“[W]here the officer has probable cause to believe
that the suspect poses a threat of serious physical harm, either to
the officer or to others, it is not constitutionally unreasonable to
prevent escape by using deadly force.” (quotation omitted)). The
incident began with a 911 call reporting that a man was carrying a
gun near a park known for fights and shootings. When Green first
observed Foster, Foster was walking across the street from that
park, traveling in the direction mentioned in the 911 call, and
matching the caller’s description of the man. Foster appeared nerv-
ous and agitated, and Green observed something heavy weighing
down Foster’s shorts on one side. Given all of this, and to protect
himself, Green drew his own gun and approached Foster,
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22-12375 Opinion of the Court 11
commanding him to show his hands. See United States v. Aldridge,
719 F.2d 368, 371 (11th Cir. 1983) (“The use of a gun in connection
with a stop is permissible when the officer reasonably believes it is
necessary for his protection.”).
Foster refused to obey Green’s commands. Instead, Foster
ran from Green. Green pursued Foster, repeating his command
that Foster stop running and drop his gun, but Foster refused to
stop running. Then, according to Green, after Foster pointed his
gun at Green, Green opened fire on Foster. Investigators recov-
ered a firearm at the scene that Green said Foster dropped there,
and that another officer observed on the ground next to Foster
when he arrived at the scene. If undisputed, this evidence shows
that Green did not use excessive force in firing at Foster. See Hunter
v. City of Leeds, 941 F.3d 1265, 1279 (11th Cir. 2019) (“It is axiomatic
that when an officer is threatened with deadly force, he may re-
spond with deadly force to protect himself.”).
But Banuchi argues that the evidence is disputed. She points
to the testimony of three witnesses—Mays, Alexander Gutierrez,
and Julius Hall—who saw Foster running from Green while using
his hands to hold up his shorts. Banuchi explains that because these
witnesses did not observe Foster holding a gun while he ran “Rule
56 mandate[s] the district court construe the facts in the light most
favorable to [Banuchi] and accept the position that Foster was un-
armed and therefore pointed no gun at Green.” And Banuchi con-
tends that Green’s account conflicted with the autopsy report
showing that the bullets entered the back of Foster’s body back to
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12 Opinion of the Court 22-12375
front and left to right. These two matters, Banuchi maintains, cre-
ate issues of material fact that a jury must review.
We disagree. First, the three witnesses did not see the criti-
cal moments before and during the shooting, so their testimony
could not create a genuine issue on whether Foster pulled the gun
on Green before Green fired. Gutierrez admitted in his sworn
statement that he “couldn’t really actually see everything” because
“everything happen[ed] so fast.” Hall testified that his “vision [was]
blurred” because Foster ran around the building, and he agreed
that he lost sight of Foster when the stoplight turned green. And
Mays swore that he was around the corner when he heard the shots
were fired. The only testimony we have from the moments before
and during the shooting is from Green and he testified that Foster
pulled his gun and pointed it at Green. The gun found next to Fos-
ter corroborates Green’s testimony and nothing contradicts it.
Second, Banuchi is wrong about what the autopsy report
showed. The autopsy found that Foster was shot from the front in
his left upper arm and in his left thigh. And the autopsy report
found that Foster was shot on his right-side buttock. The shots, in
other words, were not all fired from back to front and left to right,
as Banuchi argues.
In the end, like the district court, we are left with the undis-
puted evidence that Foster had a gun and pointed it at Green before
Green fired. Based on this undisputed evidence, we must con-
clude, like the district court, that Green did not use excessive force
in his response to the threat of deadly force. The district court
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22-12375 Opinion of the Court 13
properly granted summary judgment for Green on Banuchi’s sec-
tion 1983 claim.
B.
Banuchi also contends that the district court erred in dismiss-
ing her Monell claim against the City and in denying her leave to
amend the Monell claim to add more allegations about the City’s
customs and practices. We disagree.
“To impose Monell liability, ‘a plaintiff must show: (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.’” Underwood v. City of Bessemer, 11 F.4th 1317, 1333 (11th
Cir. 2021) (quoting McDowell v. Brown, 392 F.3d 1283, 1289 (11th
Cir. 2004)). In other words, “the plaintiff must demonstrate the
municipality’s policy or custom was the ‘moving force’ behind the
. . . constitutional violation.” Id. (citation omitted). But a custom
or policy “cannot be the ‘moving force’ of a constitutional violation
if there is no constitutional violation.” Turner v. Williams, 65 F.4th
564, 589 (11th Cir. 2023) (citation omitted).
That’s the case here. As discussed above, the evidence,
when viewed in the light most favorable to Banuchi, showed that
there was no constitutional violation. So whatever custom or pol-
icy Banuchi alleged in her first amended complaint or wants to al-
lege in a third amended complaint cannot be the moving force of a
constitutional violation under Monell—because there was none.
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14 Opinion of the Court 22-12375
Thus, any remand on the Monell claim would be futile because the
result would be the same—judgment for the City.
CONCLUSION
Foster’s death is a tragedy. But because “[i]t is axiomatic that
when an officer is threatened with deadly force, he may respond
with deadly force to protect himself,” Hunter, 941 F.3d at 1279, and
because it was undisputed that Green was threatened with deadly
force, the law requires that we affirm the summary judgment for
Green and the City. So we do.
AFFIRMED.
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