Carolyn Mincey, et al v. Ryan Vardman, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11437
Non-Argument Calendar
____________________
CAROLYN MINCEY,
QUENTINA SONNIER,
Plaintiffs-Appellants,
versus
RYAN VARDMAN,
PIEDMONT HEALTHCARE, INC,
HUGHSTON HOSPITAL, INC.,
Defendants-Appellees.
____________________
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2 Opinion of the Court 23-11437
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 4:21-cv-00110-CDL
____________________
Before J ORDAN, L AGOA, and B LACK , Circuit Judges.
PER CURIAM:
Carolyn Mincey and Quentina Sonnier appeal the district
court’s grant of summary judgment to Ryan Vardman, Piedmont
Healthcare, Inc., and Hughston Hospital, Inc., in Mincey and Son-
nier’s 42 U.S.C. § 1983 case. Mincey and Sonnier allege Vardman
violated their Fourth Amendment rights when he falsely arrested
them while they were visitors at a hospital.1 Mincey and Sonnier
also allege the district court erred in denying them leave to amend.
After review,2 we affirm the district court.
1 Mincey and Sonnier also brought claims under Georgia state law against
Vardman, Piedmont Healthcare, Inc., and Hughston Hospital. The district
court declined to exercise supplemental jurisdiction over those claims. As we
affirm the district court’s grant of qualified immunity to Vardman, we need
not address the state law claims.
2 We review a grant of summary judgment de novo, drawing all reasonable
inferences in the light most favorable to the non-moving party. Ireland v. Prum-
mell, 53 F.4th 1274, 1286 (11th Cir. 2022). While we generally review a district
court’s decision to deny leave to amend for an abuse of discretion, we review
de novo an order denying leave to amend based on a conclusion of law. City of
Miami v. Citigroup Inc., 801 F.3d 1268, 1275 (11th Cir. 2015).
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I. BACKGROUND
On July 7, 2019, Mincey and her daughter Sonnier were in
the waiting room of the emergency room (ER) at Piedmont Co-
lumbus Northside Hospital in Columbus, Georgia. Mincey and
Sonnier were visiting a sick loved one, and they were each holding
one of Sonnier’s 10-month-old twins. By chance, some extended
family members were also present in the ER visiting a different sick
loved one. Mincey and Sonnier were sitting with several family
members, including Patricia Banks, Jariyah Cotton, Alberta Cot-
ton, Nifferteria Parham, Keonte Alexander, Marsha Alexander, and
Linda Green.
Vardman was a corporal in the Columbus Police Depart-
ment, and was working off-duty providing security in the ER on
July 7, 2019. Vardman was wearing his standard issue Columbus
Police Department uniform. Vardman was seated at the front desk
of the ER waiting room next to Katharina Spurlock, the ER patient
access representative. Spurlock controlled access to the ER rooms
from the waiting area. At one point, when Spurlock opened the
secure doors to allow an authorized visitor into the ER, another
unauthorized person also went through the secure doors. Spurlock
expressed her frustration, and Keonte Alexander made a comment
to those sitting next to him that “if she didn’t like her job, she needs
to go find another one.”
This led Vardman to get up from behind the desk to address
the group. Keonte Alexander acknowledged he made the com-
ment about Spurlock. When Vardman told the group to “shut up,”
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he did so in an “aggressive and disrespectful” way, that was “rude
and loud.” Vardman told the group if they were not quiet, they
would have to leave.
Mincey and Vardman argued about her behavior and Spur-
lock’s enforcement of hospital policies. Another visitor in the ER
waiting room, Keith Wright, videoed some of the encounter on his
phone. On the video, the following exchange can be heard:
Vardman: Are we good?
Mincey: Sit down and stop talking to me.
Vardman: Okay. Stand up . . . give the kid to some-
one . . . stand up.
Mincey: No, I’m not.
Vardman: Do you want to go to jail?
Mincey: Do you?
Vardman: You want to go to jail? Stand up . . .
Mincey: [Inaudible] not bothering you . . .
Vardman: You’re not going to do that . . . you’re
not going to do this . . . no you’re not . .
. what you’re doing is you’re causing a
scene.
Mincey: No . . . I didn’t say anything . . .
Vardman: You are . . . She [Spurlock] is not being
rude . . . listen . . . listen . . . what she’s
[inaudible] is . . . she’s [inaudible] policy
and procedures . . . there’s a reason for
it.
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23-11437 Opinion of the Court 5
After this first exchange, Vardman returned to the front
desk. He again reminded the group he would have to ask them to
leave if they did not sit quietly. In response, Mincey gave Vardman
a dismissive hand gesture, which Mincey calls the “whatever hand.”
Vardman then left the desk, and walked back toward Mincey and
the group. Mincey testified Vardman stated she needed to leave or
she would be arrested. The ER Security Video shows Vardman
standing in front of Mincey, who is still holding one of the twins,
talking and motioning with his hands. Vardman is then seen walk-
ing away and speaking into his radio. This call was recorded. Vard-
man states “Code 3” and asks for a transport. A “Code 3” is a re-
quest for a backup officer. After the radio call, Vardman returned
to speak with Mincey. At this point, Wright began filming again.
Mincey: I did not say anything to you . . .
Vardman: You’ve been asked to leave . . . if you
don’t leave, you’re going to jail.
Mincey: Let’s go . . . racist ass motherfuckers . . .
I get tired of this shit . . .
Vardman: Not . . . now you’re under arrest
Mincey: I’m not . . . I’m not [inaudible]
Vardman: Ma’am stop . . .
Mincey: Do not touch me!
Vardman: Get the child . . .
Mincey: Don’t touch me!
Vardman: Give the child . . . give the child . . . oh
no, no, no that was too late . . . too late
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. . . you’re jerking the child around
ma’am . . . stop . . . you know what
you’re doing . . .
While holding the child, Mincey physically resisted Vardman’s ef-
forts to arrest her, pushing him as she was leaving. Sonnier, who
was also holding a child, placed herself between Vardman and
Mincey, and did not comply with Vardman’s order to “get out of
the way,” making it more difficult for Vardman to arrest Mincey.
Sonnier also pushed Vardman as he attempted to separate her from
Mincey. Throughout the struggle, Vardman directed Mincey and
Sonnier to stop using the children to interfere with their arrests.
Her resistance resulted in a cut to Vardman’s head when Mincey
knocked off his sunglasses. Once Mincey and Sonnier finally re-
leased the children, Vardman arrested Mincey and Sonnier.
Mincey was charged with misdemeanor disorderly conduct
in violation of O.C.G.A. § 16-11-39, misdemeanor criminal trespass
in violation of O.C.G.A. § 16-7-21, misdemeanor reckless conduct
in violation of O.C.G.A. § 16-5-60, and felony obstruction of an of-
ficer in violation of O.C.G.A. § 16-1024(b). Sonnier was charged
with misdemeanor reckless conduct and felony obstruction of an
officer. At the conclusion of a jury trial, Mincey and Sonnier were
acquitted on all charges.
II. DISCUSSION
To receive qualified immunity, an officer “bears the initial
burden to prove that he acted within his discretionary authority.”
Dukes v. Deaton, 852 F.3d 1035, 1041 (11th Cir. 2017). The plaintiff
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then bears the burden of proving “the defendant violated a consti-
tutional right” and “the right was clearly established at the time of
the violation.” Barnes v. Zaccari, 669 F.3d 1295, 1303 (11th Cir. 2012).
Because Mincey and Sonnier do not dispute Vardman was engaged
in a discretionary function, they bear the burden of proving Vard-
man was not entitled to qualified immunity.
Mincey and Sonnier claim Vardman is liable under the
Fourth Amendment for false arrest. In the context of an arrest,
probable cause exists “when the facts, considering the totality of
the circumstances and viewed from the perspective of a reasonable
officer, establish ‘a probability or substantial chance of criminal ac-
tivity.’” Washington v. Howard, 25 F.4th 891, 898 (11th Cir. 2022)
(quoting District of Columbia v. Wesby, 583 U.S. 48, 57 (2018)). In
assessing whether there was probable cause for an arrest, we “ask
whether a reasonable officer could conclude that there was a sub-
stantial chance of criminal activity.” Id. at 902 (quotation marks
and alteration omitted). “Probable cause does not require conclu-
sive evidence and is not a high bar.” Id. at 899 (quotation marks
omitted).
An officer need not have actual probable cause, but only ar-
guable probable cause, to receive qualified immunity. Brown v. City
of Huntsville, 608 F.3d 724, 734 (11th Cir. 2010). “Arguable probable
cause exists where reasonable officers in the same circumstances
and possessing the same knowledge as the [officer] could have be-
lieved that probable cause existed to arrest.” Id. (quotation marks
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8 Opinion of the Court 23-11437
omitted). “Showing arguable probable cause does not . . . require
proving every element of a crime.” Id.
We begin with discussing Mincey’s arrest for disorderly con-
duct, which is the arrest that preceded the offenses of reckless con-
duct and obstruction of an officer in Mincey’s and Sonnier’s arrests.
See Glenn v. State, 849 S.E.2d 409, 418 (Ga. 2020) (“When an arrest
is lawful, of course, the right to resist an unlawful arrest is not per-
tinent.”).
A. Disorderly conduct
To determine whether there was probable cause or arguable
probable cause for Mincey’s disorderly conduct arrest, we ask
whether a reasonable officer could have concluded there was a sub-
stantial chance she had committed the crime of disorderly conduct.
(a) A person commits the offense of disorderly con-
duct when such person commits any of the following:
. . . .
(3) Without provocation, uses to or of another person
in such other person’s presence, opprobrious or abu-
sive words which by their very utterance tend to in-
cite to an immediate breach of the peace, that is to
say, words which as a matter of common knowledge
and under ordinary circumstance will, when used to
or of another person in such other person’s presence,
naturally tend to provoke violent resentment, that is,
words commonly called “fighting words”; or
(4) Without provocation, uses obscene and vulgar or
profane language in the presence of or by telephone
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23-11437 Opinion of the Court 9
to a person under the age of 14 years which threatens
an immediate breach of the peace.
O.C.G.A. § 16-11-39(a)(3)-(4).
Vardman had arguable probable cause to arrest Mincey for
disorderly conduct. The “totality of the circumstances” is im-
portant in this analysis. See Washington, 25 F.4th at 898. Mincey
frames the probable cause issue solely in response to her profane
comment calling Vardman a “racist ass motherfucker” as she at-
tempted to leave the hospital. We agree that Mincey’s vulgar lan-
guage, without more, would not constitute a violation of the stat-
ute. See In re L.E.N., 682 S.E.2d 156, 158 (Ga. Ct. App. 2009) (“State
law no longer criminalizes the use of unprovoked language threat-
ening an immediate breach of peace, which is obscene, vulgar, or
profane, that is directed to a person older than 14 years of age, un-
less such language also constitutes ‘fighting words.’” (quotation
marks omitted)). Further,
the fighting-words exception to constitutionally pro-
tected speech requires a narrower application in cases
involving words addressed to a police officer. This is
because a properly trained officer may reasonably be
expected to exercise a higher degree of restraint than
the average citizen, and thus be less likely to respond
belligerently to fighting words.
Trammell v. State, 851 S.E.2d 834, 851 (Ga. Ct. App. 2020) (quoting
Knowles v. State, 797 S.E.2d 197, 201 (Ga. Ct. App. 2017)). Merely
insulting an officer is not enough for a disorderly conduct arrest.
See id.
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However, Mincey’s words and actions must be put into con-
text. See Knowles, 797 S.E.2d at 278-79 (“[W]hen determining
whether words constitute fighting words, the circumstances sur-
rounding the words can be crucial, for only against the background
of surrounding events can a judgment be made whether these
words had a direct tendency to cause acts of violence by others.”
(quotation marks omitted)). First, Mincey engaged in an argument
with Vardman in an ER waiting room where people were waiting
for medical care and tensions are often high. In addition to
Mincey’s family, there were people waiting in the same room to see
a medical professional. For example, Lindsey Kyte was waiting to
see a medical professional while suffering a serious ear infection
and was in severe pain. Second, Mincey continued holding her 10-
month-old grandson even after being asked by Vardman to hand
the child to someone else. Mincey had several family members
around who could have held the child after Vardman asked Mincey
to hand the child to someone else. Mincey’s actions in the video
support that she failed to hand over the child and kept the child to
use as a shield. Third, Mincey’s obscene and vulgar or profane lan-
guage was used in the presence of two children under the age of
14 years. Fourth, Mincey used the obscene language in front of the
rest of her family, which could threaten a breach of the peace.
A reasonable officer, knowing what Vardman knew at the
time, objectively could have believed probable cause existed to ar-
rest Mincey for a violation of O.C.G.A. § 16-11-39(a)(3)-(4). See
Brown, 608 F.3d at 734. We conclude Mincey’s actions of (1) argu-
ing with Vardman in front of a group of her family, (2) while
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23-11437 Opinion of the Court 11
holding her 10-month-old grandson, (3) in an ER waiting room,
and (4) using profane language in the presence of children under
14 years old, could have indicated to an objectively reasonable of-
ficer at the scene that Vardman’s conduct was disorderly, even if
those circumstances were ultimately insufficient to prove a viola-
tion of § 16-11-39(a)(3)-(4). See id. Consequently, the district court
did not err in determining Vardman was entitled to qualified im-
munity on Mincey’s claim for false arrest.
B. Reckless Conduct and Obstruction of an Officer
Georgia’s reckless conduct statute provides, “[a] person who
. . . endangers the bodily safety of another person by consciously
disregarding a substantial and unjustifiable risk that [her actions]
will cause harm or endanger the safety of the other person and the
disregard constitutes a gross deviation from the standard of care
which a reasonable person would exercise in the situation is guilty
of a misdemeanor.” O.C.G.A. § 16-5-60(b). Georgia’s obstruction
statute provides, “[w]hoever knowingly and willfully resists, ob-
structs, or opposes any law enforcement officer . . . in the lawful
discharge of his . . . duties by offering or doing violence to the per-
son of such officer . . . shall be guilty of a felony.” O.C.G.A. § 16-
10-24(b).
Vardman possessed probable cause to arrest Mincey and
Sonnier for reckless conduct and obstruction of an officer. First,
Vardman was acting within the lawful discharge of his duties as he
had arguable probable cause to arrest Mincey for disorderly con-
duct. In the course of making that lawful arrest, Mincey, while
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holding a 10-month-old child, physically interfered with Mincey’s
arrest, and Sonnier, while also holding a 10-month-old child, phys-
ically interfered with Mincey’s arrest. As the district court stated,
“[b]y holding the children during their arrest, [Mincey and Sonnier]
put the children in harm’s way. Under these circumstances, Vard-
man possessed probable cause to arrest them for both reckless con-
duct and felony obstruction.” Vardman was entitled to qualified
immunity as he had probable cause to arrest Mincey and Sonnier
for these offenses.3
C. Leave to Amend
Mincey and Sonnier moved to amend their complaint to add
a negligence count 88 days after the amended pleadings deadline,
and only two days before the extended discovery deadline expired.
The district court denied the motion, concluding they failed to
show good cause for filing an amended complaint beyond the dead-
line established by the scheduling order. Mincey and Sonnier con-
tend the district court used the wrong standard in denying the mo-
tion, asserting the court should have used the Federal Rule of Civil
Procedure 15(a)(2) standard of freely giving leave when justice so
requires, rather than the Rule 16 “good cause” standard. Mincey
and Sonnier assert the scheduling order’s language that any amend-
ments after 90 days prior to the close of discovery “shall require
3 Because we conclude Vardman had arguable probable cause or actual prob-
able cause for at least one charged offense, it is not necessary to address
whether the trespass charge against Mincey was supported by probable cause.
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23-11437 Opinion of the Court 13
leave of Court,” required the district court to use the Rule 15 stand-
ard.
That the scheduling order referenced “leave of Court” does
not implicitly adopt the Rule 15 standard for amendments.
“[W]hen a motion to amend is filed after a scheduling order dead-
line, Rule 16 is the proper guide for determining whether a party’s
delay may be excused.” Sosa v. Airprint Sys., Inc., 133 F.3d 1417, 1418
n.2 (11th Cir. 1998). Mincey and Sonnier filed their motion to
amend after the scheduling order deadline—thus, Rule 16’s “good
cause” standard was the proper legal framework. The district court
did not err.4
III. CONCLUSION
We affirm the district court’s grant of summary judgment.
AFFIRMED.
4 Mincey and Sonnier do not contend the district court abused its discretion in
its good cause finding.
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