Renardo Lewis, et al. v. City of Marietta, et al.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10614
Non-Argument Calendar
____________________
RENARDO NEHEMIAH LEWIS,
LUBREEZE LEWIS-FRANKLIN,
Plaintiffs-Appellants,
versus
CITY OF MARIETTA,
CHIEF DAN FLYNN,
Police Chief Individual and Professional Capacity,
ENRIQUE MALLEN,
JOSHUA MADISON,
STACEY FOWLER,
In their individual and professional capacities, et al.,
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2 Opinion of the Court 23-10614
Defendants-Appellees,
MUHAMMED IFTIKHAR,
CEO Individual and Personal, et al.,
Defendants.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:21-cv-01883-ELR
____________________
Before ABUDU, ANDERSON, and DUBINA , Circuit Judges.
PER CURIAM:
Appellants Renardo Lewis and Lubreeze Lewis-Franklin
(Lewis’s wife) appeal the district court’s order granting Appellees’
motion to dismiss, pursuant to Civil Rule of Civil Procedure
12(b)(6), Appellants’ 42 U.S.C. § 1983 complaint. Appellants origi-
nally filed their complaint in state court, alleging claims of mali-
cious prosecution, false arrest, and excessive force against the Ap-
pellees, the City of Marietta, Marietta Police Chief Dan Flynn, City
of Marietta police officers Joshua Madison, Stacey Fowler, Enrique
Mallen and Noah Mack (“City Appellees”), International House of
Pancakes (“IHOP”) employees Joseph Sudderth and David
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23-10614 Opinion of the Court 3
Vanzant, IHOP’s CEO Muhammed Iftikhar and Iftikhar Enter-
prises, Inc. (“IHOP Defendants”). Appellees/Defendants removed
the case to federal court, and Appellants filed an amended com-
plaint raising fifteen counts against the various Appellees/Defend-
ants. The IHOP Defendants filed answers, and the City Appellees
moved to dismiss all the claims against them. The district court
dismissed the claims against the City Appellees, and the Appellants
appeal from this order of dismissal. Having read the parties’ briefs
and reviewed the record, we affirm in part and reverse in part the
district court’s order.
I.
According to the complaint, early on the morning of Sun-
day, March 31, 2019, Lewis entered an IHOP to place a take-out
order. Lewis requested bacon as part of his order, and Sudderth,
an employee, informed Lewis that the restaurant was out of bacon.
Lewis returned to his vehicle to ask his wife what she wanted in
place of bacon, and when Lewis re-entered the IHOP, Sudderth in-
formed him that the grill was closed. Lewis and Sudderth engaged
in a verbal exchange regarding the restaurant’s customer service.
David Vanzant, cook and manager at the IHOP, called the police to
report that Lewis had threatened the staff and had a weapon. Of-
ficer Madison initially responded to the call, and later Officers Mal-
len, Fowler, and Mack joined him at the IHOP. Officer Fowler re-
quested that Lewis produce his driver’s license, and while he was
doing so, Lewis heard Officer Madison yelling at his wife. Lewis
pivoted to check on his wife, and at that point, Lewis alleges that
Officer Mallen forcefully grabbed his arm and slammed him
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4 Opinion of the Court 23-10614
against the glass window. Lewis claims that the officers proceeded
to beat him, stun him with a taser, and arrest him, although he was
complying with the officers’ instructions and was not resisting. Of-
ficers took Lewis to the hospital and then to the Cobb County De-
tention Center.
Officials charged Lewis with twenty-seven criminal counts
stemming from the IHOP incident and held him in jail for thirty-
one days. Later, a grand jury indicted him on all charges, but the
State entered a nolle prosequi. Subsequently, Lewis and his wife filed
their complaint against the Appellees. They asserted the following
federal claims for: (1) excessive force against the City Officers; (2)
Monell1 liability against the City and Chief of Police; (3) malicious
prosecution against the City Officers; (4) false arrest against the
City Officers; (5) false imprisonment against the City Officers and
IHOP Defendants; state claims for (6) malicious prosecution
against City Officers, Vanzant and Sudderth; (7) intentional inflic-
tion of emotion distress against City Officers, Vanzant and Sud-
derth, (8) assault and battery against City Officers; (9) negligent hir-
ing and retention against the City and Chief of Police; (10) false
arrest against the Sheriff; (11) false imprisonment and false arrest
against the Sheriff; (12) federal claim of conspiracy against the City
Officer and the IHOP Defendants; (13) state law claim of vicarious
liability against Iftikhar and Iftikhar Enterprises; (14) state law
claim of negligent hiring and retention against Iftikhar and Iftikhar
Enterprises; and (15) state law claim of loss of consortium against
1 Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S. Ct. 2018 (1978).
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23-10614 Opinion of the Court 5
all Appellees. The City Appellees moved to dismiss the claims un-
der Rule 12(b)(6), and the district court granted the motion. The
IHOP Defendants did not join in the motion to dismiss, and they
are not parties in this appeal.
II.
We review de novo a district court’s grant of a motion to dis-
miss, “accepting the factual allegations in the complaint as true and
construing them in the light most favorable to the plaintiff.” Boyd
v. Warden, Holman Corr. Facility, 856 F.3d 853, 863-64 (11th Cir. 2017)
(internal quotation marks and alteration omitted). To survive a
Rule 12(b)(6) motion to dismiss, “a complaint must contain suffi-
cient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct.
1937, 1949 (2009) (internal quotation marks omitted). While a
complaint need not contain detailed allegations, it must “include
enough facts to raise a right to relief above the speculative level on
the assumption that all the allegations in the complaint are true.”
Boyd, 856 F.3d at 864 (internal quotation marks omitted).
“In ruling on a motion to dismiss, the district court may con-
sider an extrinsic document if it is (1) central to the plaintiff’s claim,
and (2) its authenticity is not challenged.” Speaker v. United States
HHS CDC & Prevention, 623 F.3d 1371, 1379 (11th Cir. 2010) (citation
omitted). When the exhibits attached to the plaintiff’s pleading
contradict the general and conclusory allegations of the pleading,
the exhibits govern, even at the motion to dismiss stage. See Griffin
Indust. v. Irvin, 496 F.3d 1189, 1206 (11th Cir. 2007). Moreover, video
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6 Opinion of the Court 23-10614
footage that obviously contradicts the non-movant’s version of the
facts will be considered rather than the non-movant’s account.
Pourmoghani-Esfahani v. Gee, 625 F.3d 1313, 1315 (11th Cir. 2010).
III.
A. Motion to Dismiss
1. The City
Appellants contend that the district court erred by granting
the City Appellees’ motion to dismiss their federal § 1983 claims.
Specifically, as to the City, however, the Appellants fail to include
any arguments or authority to show how the district court erred in
finding that the City was not liable for any claim. As such, they
have abandoned their claims against the City. See Christmas v. Harris
Cnty., Ga., 51 F.4th 1348, 1354 (11th Cir. 2022) (failure to raise an
issue in an initial brief is a forfeiture of that issue). Further, on the
merits, the Appellants fail to allege a direct causal link between the
City’s policy or custom and the alleged constitutional violation.
City of Canton v. Harris, 489 U.S. 378, 385, 109 S. Ct. 1197, 1203
(1989); Grech v. Clayton Cnty., Ga., 335 F.3d 1326, 1329 (11th Cir.
2003). Appellants do not allege facts to support their contention
that the City had an officially promulgated policy or an unofficial
custom or practice of allowing for excessive force, false arrest, or
malicious prosecution by its officers. Rather, the Appellants make
broad and conclusory allegations regarding the policies and train-
ing of City officers and fail to state a § 1983 claim against the City.
Appellants also fail to state adequately a claim against the
City pursuant to Monell v. New York City Dep’t of Soc. Servs., 436 U.S.
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23-10614 Opinion of the Court 7
658, 694, 98 S. Ct. 2018, 2037 (1978) (local government cannot be
sued under § 1983 for an injury inflicted solely by its agents or em-
ployees). Absent an explicit policy for inadequate training or su-
pervision, the Appellants must show that the City’s failure to train
evidenced a “deliberate indifference” to the rights of its inhabitants.
Gold v. City of Miami, 151 F.3d 1346, 1350 (11th Cir. 1998). Appel-
lants can make this showing by presenting “some evidence that the
[City] knew of a need to train and/or supervise in a particular area
and the [City] made a deliberate choice not to take any action.” Id.
Appellants’ claim is devoid of any such showing, and we conclude
from the record that their § 1983 claims against the City fail. Thus,
we affirm the district court’s order dismissing these claims against
the City.
2. Chief of Police
Appellants claim that the district court erred in dismissing
the federal § 1983 claim for supervisory liability and the state law
claim of negligent hiring and retention against the Chief of Police
in his individual capacity. However, they fail to argue or brief any
authority to support their claim. As such, they have abandoned this
claim. See Christmas, 51 F.4th at 1354. Assuming they did not aban-
don these claims, the federal claim fails nonetheless because the
Appellants make no allegations that the Chief of Police directly
participated in any of the alleged constitutional violations. See
Keith v. DeKalb Cnty., Ga., 749 F.3d 1034, 1047-48 (11th Cir. 2014)
(stating that to be held liable under a theory of supervisory liability,
a plaintiff must show that the supervisor “either directly
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8 Opinion of the Court 23-10614
participated in the unconstitutional conduct or that a causal con-
nection exists between the supervisor’s actions and the alleged con-
stitutional violation”). As for the state claim, because the Appel-
lants do not show malice or an intent to injure by the Chief, this
claim also fails. See Grammens v. Dollar, 697 S.E. 2d 775, 777 (Ga.
2010) (stating that official is entitled to immunity unless plaintiff
can show that officer acted with actual malice or an intent to injure
in undertaking his discretionary acts of hiring and retaining em-
ployees). Thus, we conclude that the district court properly dis-
missed these claims against the Chief of Police.
3. Individual Officers
Appellants argue that the district court erred in dismissing
their federal Fourth Amendment claims of excessive force, mali-
cious prosecution, false arrest, and conspiracy against the individ-
ual officers. The district court conducted an analysis under quali-
fied immunity and found that there was no dispute that the officers
were acting within the scope of their discretionary authority dur-
ing the incident. Grider v. City of Auburn, 618 F.3d 1240, 1268 (11th
Cir. 2010). The district court thus considered whether the Appel-
lants presented sufficient facts to allege a violation of a constitu-
tional right, and, if so, whether that right was clearly established.
Finding that the Appellants failed to support their allegations, the
district court determined that the officers were entitled to qualified
immunity and dismissed these claims.
We conclude, based on the record, that the district court
erred in dismissing the Appellees’ claim of excessive force. Having
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23-10614 Opinion of the Court 9
reviewed the record, particularly the videotape of the incident, we
conclude that the officers initial use of force to secure Lewis against
the window was reasonable under the circumstances. However,
we disagree with the district court regarding the continued use of
force by the officers. Although Lewis was verbally caustic toward
the officers, he did not appear combative physically, and a reasona-
ble officer would not have used a disproportionate amount of force
under the circumstances as these officers did to subdue Lewis and
handcuff him. We conclude that the Appellees’ complaint contains
sufficient factual matter, that accepted as true, states a claim to re-
lief that is plausible on its face. Accordingly, we reverse the district
court’s order of dismissal as to the excessive force claim against the
individual officers, and remand this claim to the district court.
However, we conclude that the district court properly dis-
missed the malicious prosecution claim, the false arrest claim, and
the conspiracy claim against the individual officers. The Appellants
do not allege facts sufficient to establish that the legal process justi-
fying his seizure was constitutionally infirm and that his seizure
would not otherwise be justified without legal process. See Wil-
liams v. Aguirre, 965 F.3d 1147, 1157-59 (11th Cir. 2020) (claim of
malicious prosecution). Appellants have not alleged that the indi-
vidual officers intentionally or recklessly made misstatements or
omissions necessary to support the arrest warrant for Lewis; thus,
their malicious prosecution claim fails. Likewise, the district court
properly dismissed the false arrest claims because the officers had
probable cause to arrest Lewis. See Myers v. Bowman, 713 F.3d 1319,
1326 (11th Cir. 2013) (evidence of probable cause is an absolute bar
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10 Opinion of the Court 23-10614
to false arrest claims). As to the conspiracy claim, the record
demonstrates that the Appellants failed to show that the officers
and the IHOP employees “reached an understanding” to deny
Lewis his constitutional rights. See NAACP v. Hunt, 891 F.2d 1555,
1563 (11th Cir. 1990).
Appellants also contend on appeal that the district court
erred in dismissing the state law claims of false imprisonment, ma-
licious prosecution, intentional infliction of emotional distress, and
assault and battery against the individual officers. The district
court determined that the Appellants failed to allege any facts
showing that the individual officers acted with actual malice, and,
thus, the officers were entitled to official immunity under Georgia
law. See e.g., Murphy v. Bajjani, 647 S.E.2d 54, 60 (2007) (explaining
actual malice for purposes of official immunity). The record sup-
ports the district court’s determination, and, thus, we conclude
that the district court properly dismissed the state law claims
against the individual officers.
B. Ante Litem Notice
Appellants contend that the district court erroneously dis-
missed their § 1983 and state law intentional tort claims against the
City due to their failure to serve a proper ante litem notice. See Ga.
Code § 50-21-26 (2022) (providing that a party cannot bring an ac-
tion against the State without giving notice of the claim and its in-
tent to litigate). A review of the record demonstrates that this as-
sertion is incorrect. The district court’s order clarifies that the only
claim the district court dismissed for improper ante litem notice is
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23-10614 Opinion of the Court 11
one claim for negligence against the City: a state law claim for neg-
ligent hiring and retention against the Chief of Police in his official
capacity and the City. In a further order, the district court reiter-
ated that it dismissed only one claim based on the improper ante
litem notice requirement. Thus, the record demonstrates that the
Appellants’ claim is meritless.
C. Consideration of Police Officers’ Videos
The Appellants argue that the district court improperly con-
sidered the officers’ body camera videos without viewing and con-
sidering their witness camera footage. The record shows that the
Appellants specifically incorporated by reference the witness video
in their amended complaint and incorporated by reference the of-
ficers’ body camera video. The district court did consider both be-
cause it alluded to both videos in its orders. Further, the district
court could consider any documents attached to the Rule 12 mo-
tion if the attachment was central to one of the claims and its au-
thenticity was undisputed. See Horsley v. Feldt, 304 F.3d 1125, 1134-
35 (11th Cir. 2002) (discussing incorporation by reference doctrine).
The Appellants have never challenged the authenticity of any video
submitted to or considered by the district court nor have they ar-
gued how the witness video casts the facts differently than the of-
ficers’ body camera video. Thus, the Appellants fail to demonstrate
any error by the district court in its consideration of the videos.
D. Use of Force standard
The Appellants claim that the district court improperly re-
lied on Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865 (1989), to
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12 Opinion of the Court 23-10614
analyze their claim of excessive force under the Fourth Amend-
ment rather than the Fourteenth Amendment substantive due pro-
cess provision. The record shows that the district court determined
that the officers had probable cause to arrest Lewis, regardless of
whether he had, in fact, committed a crime. The Appellants do not
demonstrate any error with respect to the district court’s probable
cause analysis, and Georgia law shows that the conduct of which
Lewis engaged establishes probable cause to arrest a suspect for ob-
struction of justice. See Draper, 369 F.3d at 1277 (“By repeatedly
refusing to comply with [the officer’s] reasonable instructions, and
by acting belligerently and confrontationally, Draper hindered [the
officer] in completing the traffic stop. Thus, [the officer] had ample
probable cause to arrest Draper” for willful obstruction of an of-
ficer in the lawful discharge of his duties.). Thus, we conclude that
the district court properly analyzed the use of force claim under
the Fourth Amendment.
IV.
Accordingly, based on the foregoing reasons, we reverse the
district court’s order of dismissal regarding the excessive force
claim against the individual officers and affirm the district court’s
order in all other respects against the City, the Police Chief, and the
individual officers. We remand this case for further proceedings
consistent with this opinion.
AFFIRMED in part, REVERSED in part, and
REMANDED.
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