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                                                                             [PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 12-11401
                            ________________________

                     D.C. Docket No. 6:10-cv-00120-MSS-GJK

OBERIST LEE SAUNDERS,
a.k.a. Oberist Lee Saunders, Jr.,
                                                              Plaintiff - Appellant,

versus


GEORGE C. DUKE, M.B.I. Agent,
THOMAS MATTHEWS, Agent,
CONRAD KILIAN, Agent,
                                                              Defendants - Appellees.
                            ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                          ________________________

                                 (September 8, 2014)

Before WILSON and JORDAN, Circuit Judges, and ROTHSTEIN, * District

Judge.

JORDAN, Circuit Judge:

*
 Honorable Barbara J. Rothstein, United States District Judge for the Western District of
Washington, sitting by designation.
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       We have repeatedly ruled that a police officer violates the Fourth

Amendment, and is denied qualified immunity, if he or she uses gratuitous and

excessive force against a suspect who is under control, not resisting, and obeying

commands. See, e.g., Priester v. City of Riviera Beach, Florida, 

, 927

(11th Cir. 2000); Slicker v. Jackson, 

, 1233 (11th Cir. 2000); Lee v.

Ferraro, 

, 1198 (11th Cir. 2002). Consistent with these decisions,

we hold today that Oberist Saunders, who alleged that his head was “slammed”

against the pavement with “extreme force” after he had been handcuffed and was

lying prone on the ground, stated a valid Fourth Amendment claim for excessive

force, and that the defendants—agents of the Florida Department of Law

Enforcement and the Orlando Metropolitan Bureau of Investigation—were not

entitled to qualified immunity. We therefore reverse the district court’s dismissal

of Mr. Saunders’ Fourth Amendment claim. 1

                                              I

       Proceeding pro se, Mr. Saunders filed a complaint under 42 U.S.C. § 1983

against FDLE Agent George Duke and MBI Agents Thomas Matthews and Conrad

Kilian. As amended, the operative complaint alleged the following facts.

       On January 24, 2008, Mr. Saunders met with a couple of individuals at a gas

station in Orlando, Florida, to sell them oxycodone pills.               Those individuals,

       1
         Mr. Saunders does not challenge the dismissal of his other claims, and we therefore do
not address them.
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however, turned out to be an undercover officer and a confidential informant. Mr.

Saunders entered the front passenger seat of the undercover agent’s car and

conducted the narcotics transaction. After the sale was completed, Agents Duke,

Matthews, and Kilian surrounded the vehicle with their weapons drawn. Agent

Matthews ordered Mr. Saunders to place his hands on the car’s windshield and not

move. Mr. Saunders immediately complied with the command without resisting or

attempting to flee. Agent Kilian then jerked Mr. Saunders out of the vehicle and

pushed him down on the hot pavement in order to handcuff him.

      After he was handcuffed, Mr. Saunders was held down against the hot

pavement on his stomach for a “long period of time,” though he was “not resisting,

posing [a] threat, or attempting to flee.” He told the agents that he was “getting

burnt.” During this time Mr. Saunders “was holding his face up off the hot

pavement to keep from being burn[ed].”         Though he was not resisting or

attempting to flee, one of the agents “slammed” Mr. Saunders’ face onto the

pavement “with extreme force.” Mr. Saunders did not see which one of the agents

struck him, but all three agents were present at the time. When Mr. Saunders was

brought to his feet, “blood was pouring out of his mouth [and] face from the

impact against the pavement.” Mr. Saunders suffered lacerations, injuries to his

teeth and jaw, damage to his left eardrum, and emotional distress due to his head

striking the pavement.

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                                         II

      The district court’s dismissal of Mr. Saunders’ Fourth Amendment claim is

subject to plenary review. We accept the factual allegations in the complaint as

true and view them in the light most favorable to Mr. Saunders. See Butler v.

Sheriff of Palm Beach Cnty., 

, 1265 (11th Cir. 2012). We also

construe the complaint liberally because it was filed pro se. See Boxer X v. Harris,

, 1110 (11th Cir. 2006).

      “Factual allegations must be enough to raise a right to relief above the

speculative level.” Bell Atlantic Corp. v. Twombly, 

, 555 (2007).

After Ashcroft v. Iqbal, 

, 678-69, 685-86 (2009), which applied the

Twombly pleading standard in a civil rights/qualified immunity context, there is no

longer a “heightened pleading” standard in “cases governed by Rule 8(a)(2),

including civil rights [cases]” under § 1983. Randall v. Scott, 

, 710

(11th Cir. 2010).

                                        III

      With respect to the Fourth Amendment claim arising out of the alleged

slamming of Mr. Saunders’ head to the pavement, the district court ruled that

Agents Duke, Matthews, and Kilian were entitled to qualified immunity. The

district court acknowledged the existence of cases like Hadley v. Gutierrez, 526

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, 1330, 1332 (11th Cir. 2008) (holding that a police officer who struck a

handcuffed, non-resisting suspect in the stomach violated the Fourth Amendment

and was not entitled to qualified immunity), but explained that the “use of force

during an arrest is not clearly unlawful if an arresting officer is faced with an

uncooperative suspect or if an officer perceives resistance in a volatile situation.”

It then reasoned that, because Mr. Saunders had lifted his head off the pavement,

“a reasonable officer in [the defendants’] position could have believed that the use

of force to return [Mr. Saunders’] head to the pavement was lawful on the bases

that [Mr. Saunders] was refusing to cooperate and/or resisting arrest when he lifted

his head from the pavement.” In so ruling, the district court erred.

                                         A

      “Qualified immunity ‘gives government officials breathing room to make

reasonable but mistaken judgments about open legal questions.’” Lane v. Franks,

, 2381 (2014) (citation omitted). Under this doctrine, “courts may

not award damages against a government official in his personal capacity unless

the official violated a statutory or constitutional right, and the right was ‘clearly

established’ at the time of the challenged conduct.” 

some internal

quotation marks omitted).

      In determining whether a right was clearly established, we look to the

decisions of the United States Supreme Court, the Eleventh Circuit, and the Florida

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Supreme Court. See Barnes v. Zaccari, 

, 1307 (11th Cir. 2012). See

also 

. Because it is undisputed that the agents here

were acting within the scope of their discretionary authority, “the burden shifts to

[Mr. Saunders] to show that qualified immunity is not appropriate.” 

. With these principles in mind, we turn to the qualified immunity analysis.

                                         B

      The Fourth Amendment’s guarantee against unreasonable searches and

seizures includes the right to be free from the use of excessive force in the course

of an arrest. See 

In order to determine whether the amount of force

used was proper, a court must ask “whether the officer’s conduct is objectively

reasonable in light of the facts confronting the officer.” Vinyard v. Wilson, 

, 1347 (11th Cir. 2002). In this respect, “[t]he ‘reasonableness’ of a

particular use of force must be judged from the perspective of a reasonable officer

on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor,

, 396 (1989).

      “Determining whether the force used to effect a particular seizure is

‘reasonable’ under the Fourth Amendment requires a careful balancing of the

nature and quality of the intrusion on the individual’s Fourth Amendment interests

against the countervailing governmental interests at stake.”      

internal quotation marks omitted).      This objective analysis “requires careful

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attention to the facts and circumstances of each particular case, including the

severity of the crime at issue, whether the suspect poses an immediate threat to the

safety of the officers or others, and whether he is actively resisting arrest or

attempting to evade arrest by flight.” 

are “the need for

the application of force, the relationship between the need and the amount of force

used, [and] the extent of the injury inflicted.” 

(citation,

internal quotation marks, and numbering omitted).

      Mr. Saunders alleged that, while he was left on the hot pavement for a long

period of time, he kept his head raised to avoid being burned. At the time he did

this, he was handcuffed and on his stomach, and he was not resisting or attempting

to flee. Nevertheless, one of the agents “slammed” his head against the pavement

with “extreme force,” resulting in a number of significant injuries. As we explain,

Mr. Saunders’ complaint sufficiently alleged a gratuitous use of force. Because

“[o]ur cases hold that gratuitous use of force when a criminal suspect is not

resisting arrest constitutes excessive force,” 

the district court should

not have dismissed the Fourth Amendment claim.

      We begin our discussion of Eleventh Circuit precedent with our 2000

decision in Priester. In that case, a police officer with a canine found a suspect

who had been hiding and ordered him to lie down on the ground. Under the

version of facts found by the jury, the officer released his dog to attack the suspect

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after he had complied with the command to lie down. We held that the officer

violated the Fourth Amendment because the force used was “objectively

. We also concluded that the officer was not

entitled to qualified immunity. The suspect “did not pose a threat of bodily harm

to the officers or to anyone else[,]” and was “not attempting to flee or resist arrest.”

As a result, “no particularized pre[-]existing case law was necessary for

it to be clearly established that what [the officer] did violated [the suspect’s]

constitutional right to be free from the excessive use of force.” 

the same year as Priester, presented facts remarkably

similar to the allegations made by Mr. Saunders. There some police officers, after

arresting the plaintiff for disorderly conduct and handcuffing him, slammed his

head against the pavement, knocking him unconscious. Then, after the plaintiff

came to, and while he was still handcuffed, the officers kicked him in the leg, back,

and 

. We held that this force was excessive, and that the

officers were not entitled to qualified immunity, as the plaintiff was “handcuffed

and did not resist, attempt to flee, or struggle with the officers in any way.” 

        In Lee, decided in 2002, a police officer arrested a driver for improperly

honking her horn. After he had handcuffed the driver, the officer slammed her

head against the trunk of her car. That use of force, we ruled, violated the Fourth

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Amendment because it was “plainly excessive, wholly unnecessary, and indeed,

grossly disproportionate[,]” as there was no evidence that the driver posed any

threat to the officer or to anyone 

. Relying on Slicker, we

also denied qualified immunity, reasoning that “no reasonable officer could have

believed that [such] actions were legal.” 

       Based on these cases, Mr. Saunders’ allegations are more than sufficient to

state a Fourth Amendment claim. While he was on the ground and handcuffed,

Mr. Saunders held his head up in order to avoid having his face burned by the hot

pavement. Though he was not resisting or posing a threat to anyone, one of the

agents allegedly “slammed” his head into the pavement with “extreme force.” If

these allegations are true, and we must assume that they are at this stage of the

case, that force was unnecessary, disproportionate, and constitutionally excessive.

See, e.g., 

; 

. 2


       2
          Agent Duke argues that he is entitled to dismissal because the complaint does not name
him as the one who committed the Fourth Amendment violation. Mr. Saunders responds that
that under Rule 20 of the Federal Rules of Civil Procedure he is permitted to plead in the
alternative with respect to the identity of the agent who slammed his head against the pavement.
We agree with Mr. Saunders.

        Rule 20(a)(2)(A) states that “persons . . . may be joined in one action as defendants if any
right to relief is asserted against them . . . in the alternative with respect to or arising out of the
same . . . occurrence.” Because we conclude that Mr. Saunders sufficiently alleged that one of
the three agents struck him in violation of his Fourth Amendment rights, and that all three agents
were present at the time, Mr. Saunders can plead in the alternative and pursue discovery to
uncover the identity of the agent who allegedly struck him. See Dean v. Barber, 

,
1215-16 (11th Cir. 1992) (allowing joinder of John Doe defendant where the pro se plaintiff
sufficiently identified the defendant as the supervisory official at the jail where the incident
occurred and discovery would provide the plaintiff with the information needed to specifically
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                                                 C

       The allegations also make clear that the agents are not entitled to qualified

immunity.       “[A] handcuffed, non-resisting [suspect’s] right to be free from

excessive force was clearly established [by] February 2002,” 

, or about six years before the alleged incident in this case occurred. Given

Mr. Saunders’ lack of resistance or threat, and the severity of the force used, no

reasonable officer could have believed that such conduct was permissible. See,

e.g., 

; 

.

       The district court’s grant of qualified immunity was based on the assumption

that, by lifting his head, Mr. Saunders was being uncooperative or was resisting.

That assumption, however, does not read the allegations of the complaint in the

light most favorable to Mr. Saunders. First, the complaint can fairly be read to

allege that Mr. Saunders kept his face off the pavement the whole time he was on

the ground (which was for a “long period”), and did not just lift it up all of a


identify that defendant). See also Block Indus. v. DHJ Indus., Inc., 

, 258 (8th Cir.
1974) (“The need for alternative joinder of defendants [under Rule 20] typically arises when the
substance of plaintiff’s claim indicates that [the plaintiff] is entitled to relief from someone, but
[the plaintiff] does not know which of two or more defendants is liable under the circumstances
set forth in the complaint.”) (citation omitted); Sanchez v. City of Chicago, 

, 926 n.3
(7th Cir. 2012) (“In the Fourth Amendment context, it is not essential that the identity of the
individual officer who applied the force be established. If the plaintiff can establish that an
unknown officer subjected him to excessive force, he may seek to hold liable other, named
officers who were present, observed the use of excessive force, had a reasonable opportunity to
stop the use of that force, and failed to intervene.”). We express no view, of course, as to
whether Mr. Saunders will ultimately be able to succeed against anyone on his Fourth
Amendment claim.

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sudden in defiance of contrary commands. Second, Mr. Saunders specifically

alleged that, once he was handcuffed and on the ground, he did not resist and did

not do anything to threaten the agents or anyone else.

       But even if the complaint could be read to allege that Mr. Saunders

disobeyed an order by lifting his head off the hot pavement, that minor

transgression does not mean that the force allegedly used was a constitutionally

permissible response, or that the agents are entitled to qualified immunity. See

(“In order to determine whether the amount of force used by

a police officer was proper, a court must ask whether a reasonable officer would

believe that this level of force is necessary in the situation at hand.”) (emphasis

added and citation and internal quotation marks omitted). The agents did not, by

Mr. Saunders’ account, merely exert some pressure to guide his head downward.

Instead, they “slammed” his head against the pavement with “extreme force,” and,

not surprisingly, this resulted in significant injuries to Mr. Saunders. The human

skull is a relatively hearty vessel for the brain, but it will generally not fare well in

a contest with hardened cement. 3

                                             D


       3
          The alleged collision between Mr. Saunders’ head and the pavement brings to mind one
of Sancho Panza’s many proverbs: “Whether the pitcher hits the stone, or the stone hits the
pitcher, it is bad for the pitcher[.]” MIGUEL DE CERVANTES SAAVEDRA, THE LIFE AND EXPLOITS
OF THE INGENIOUS GENTLEMAN DON QUIXOTE OF LA MANCHA, Vol. II, Chapter XLIII, at 356
(Charles Jarvis trans., W. Lewis for S. A. and H. Oddy, Oxford 1809) [1615].
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      Agents Duke and Kilian (Agent Matthews did not file a brief) nevertheless

argue that they are entitled to qualified immunity because they only used de

minimis force and because Mr. Saunders did not suffer a constitutionally

cognizable injury. Both arguments, in our view, are significantly flawed.

      “[T]he right to make an arrest or investigatory stop necessarily carries with it

the right to use some degree of physical coercion or threat thereof to effect it.”

. As a result, “the application of de minimis force,

without more, will not support a claim for excessive force in violation of the

Fourth Amendment.” Myers v. Bowman, 

, 1327 (11th Cir. 2013)

(citation and internal quotation marks omitted). See, e.g., Rodriguez v. Farrell,

, 1351 (11th Cir. 2002) (in the course of arrest, officer handcuffed

plaintiff in a manner that caused him injury and pain); Nolin v. Isbell, 

, 1255, 1258 & n.4 (11th Cir. 2000) (during the course of arrest, officer

grabbed plaintiff and shoved him against a van, kneed him in the back and pushed

his head against the van, searched his groin area, and then handcuffed him).

      But this principle has never been used to immunize officers who use

excessive and gratuitous force after a suspect has been subdued, is not resisting,

and poses no threat. Indeed, we recognized the principle in 

, and 

, and yet in both cases we held that there was a

Fourth Amendment violation based on the use of gratuitous force on a handcuffed

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and compliant suspect, and that the officers in question were not entitled to

qualified immunity.     Here the force allegedly used against Mr. Saunders was

gratuitous and constitutionally excessive, so that qualified immunity is not

appropriate.

      The argument that Mr. Saunders did not suffer a constitutionally cognizable

injury fares no better. First, Mr. Saunders alleged significant injuries resulting

from having his head slammed against the pavement: lacerations, injuries to his

teeth and jaw, damage to his left eardrum, and emotional distress. Such injuries

are not de minimis. Second, in the context of an Eighth Amendment excessive

force claim, the Supreme Court has recognized that “[a] [defendant] who is

gratuitously beaten by guards does not lose his ability to pursue an excessive force

claim merely because he has the good fortune to escape without serious injury.”

Wilkins v. Gaddy, 

, 38-39 (2010) (explaining that the “core judicial

inquiry” for an excessive force claim under the Eighth Amendment is not based on

the extent of the plaintiff’s injury, but rather on “the nature of the force” used, i.e.,

“whether [the force] was nontrivial and ‘was applied maliciously and sadistically

to cause harm’”). “To conclude . . . that the absence of ‘some arbitrary quantity of

injury’ requires automatic dismissal of an excessive force claim improperly

bypasses [the] core [judicial] inquiry,” which is the nature of the force. 

We see no reason why the same rationale should not apply in a Fourth Amendment

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excessive force case. See 

(officer’s punch to the stomach

of handcuffed and non-resisting suspect violated the Fourth Amendment). After

all, as we held in 

, a plaintiff claiming excessive force

under the Fourth Amendment can seek nominal damages if he does not have

compensable injuries.

                                          E

      Agent Duke argues that no valid Fourth Amendment claim was stated

against him because police reports attached to Mr. Saunders’ complaint (in support

of a now-dismissed conspiracy claim) show that he merely “applied shield

coverage to the right from [the] passenger window where the drug transaction

occurred.” Brief for Agent Duke at 21. We are not persuaded.

      It is true that documents attached to a complaint or incorporated in the

complaint by reference can generally be considered by a federal court in ruling on

a motion to dismiss under Rule 12(b)(6). See Tellabs, Inc. v. Makor Issues &

Rights, Ltd., 

, 322 (2007).        Here, however, Mr. Saunders expressly

alleged in his complaint that the police reports that were submitted failed to

properly and correctly document the excessive force inflicted on him and the

injuries he suffered. Where a civil rights plaintiff attaches a police report to his

complaint and alleges that it is false, as Mr. Saunders did, the contents of the report

cannot be considered as true for purposes of ruling on a motion to dismiss.

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Otherwise, officers sued under § 1983 could just attach police reports referenced in

a civil rights complaint to their motions to dismiss and ask courts to consider the

contents of those reports even if they contradicted the allegations of the complaint.

And that, as we have said, would be improper. See Fuller v. SunTrust Banks, Inc.,

, 695-96 (11th Cir. 2014) (“In general, we do not consider anything

beyond the face of the complaint and documents attached thereto when analyzing a

motion to dismiss [under Rule 12(b)(6)]. This [C]ourt recognizes an exception,

however, in cases in which [1] a plaintiff refers to a document in [his] complaint,

[2] the document is central to [his] claim, [3] its contents are not in dispute, and [4]

the defendant attaches the document to its motion to dismiss.”) (emphasis added

and internal quotation marks and citations omitted).

                                            IV

       Accepting the allegations in the complaint as true, as we must at the motion

to dismiss stage, we conclude that the district court erred in dismissing Mr.

Saunders’ Fourth Amendment excessive force claim on qualified immunity

grounds, and remand for further proceedings.4

       REVERSED AND REMANDED.


       4
          Because we conclude that Mr. Saunders has sufficiently alleged a Fourth Amendment
excessive force claim and are remanding for further proceedings, we need not address whether
the district court abused its discretion in denying Mr. Saunders’ request for appointment of
counsel pursuant to 28 U.S.C. § 1915(e)(1). On remand, we encourage the district court to
reconsider whether it would be appropriate to appoint counsel for Mr. Saunders.
                                            15