Case: 13-11972   Date Filed: 04/15/2015   Page: 1 of 18


                                                                   [PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                      Nos. 13-11972; 13-15726
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 9:11-cv-81357-KLR



WILLIAM MOBLEY,

                                                          Plaintiff-Appellant,

versus

PALM BEACH COUNTY SHERIFF DEPARTMENT, et al.,

                                                                   Defendants,

D/S JASON BRONSON,
#7869,
LT. RICHARD BURDICK,
#2847
SGT. KEVIN L. CLAPP,
#4346,
D/S EDWARD ELLIOTT,
#7608,
D/S ANTHONY JOHNSON,
#7928, et al.,

                                                       Defendants-Appellees.
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                           ________________________

                   Appeals from the United States District Court
                       for the Southern District of Florida
                          ________________________

                                  (April 15, 2015)

Before ED CARNES, Chief Judge, TJOFLAT and JORDAN, Circuit Judges.

PER CURIAM:

      William Mobley, a Florida inmate proceeding pro se, appeals the grant of

summary judgment on his 42 U.S.C. § 1983 claim of excessive force during an

arrest. He also appeals the district court’s dismissal of his complaint.

                                          I.

      We state the facts in the light most favorable to Mobley. See Gilmore v.

Hodges, 

, 272 (11th Cir. 2013) (on review of summary judgment we

“draw[] all inferences and view[] all of the evidence in [the] light most favorable to

the nonmoving party.”). In that light, they are these: On December 12, 2007,

Mobley was parked in a West Palm Beach convenience store parking lot, slouched

down in the driver’s seat of his truck, preparing to smoke crack cocaine. In

response to “complaints of high volumes of drug activity” in the area, Deputy

Sheriff Jason Bronson of the Palm Beach County Sheriff’s Office was on bicycle

patrol with his partner. Bronson, who was in uniform, approached the truck after

noticing that it was parked in a handicapped spot and not displaying a handicapped



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placard. Mobley did not see Bronson approaching his truck, and from his slouched

position in the driver’s seat, was unable to see anything that identified Bronson as a

police officer. Bronson asked “What are you doing?” Mobley, fearing that he was

being “robbed again,” dropped his pipe and keyed his truck’s ignition. As Mobley

was trying to start his truck, Bronson reached through the open driver’s side

window, grabbed Mobley’s shoulder, and tried to open the door. While Bronson

was still holding onto him, Mobley backed quickly out of the parking space. In the

process of escaping, Mobley struck Bronson with his truck and dragged him

approximately 20 feet across the parking lot before Bronson fell clear of the truck.

      Mobley fled the parking lot in his truck. As he was driving away, Mobley

saw Bronson standing in the parking lot pointing a pistol at Mobley and saw that

Bronson was a uniformed police officer. Bronson radioed an alert bulletin that

included a description of Mobley and his truck. He stated that Mobley had struck

him with the truck, tried to run him over, and fled the scene.

      Mobley drove a few blocks away and parked his truck, but a few moments

later a police cruiser arrived. Mobley again drove away, and the cruiser followed.

By the time Mobley had driven a few blocks several additional cruisers were

following him. Mobley drove recklessly and at high speeds while trying to evade

the pursuing police. While looking back at the police cruisers, Mobley felt his

truck run off the road. He faced forward again in time to avoid striking the trunk



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of a tree, but the truck struck a tree limb that shattered the windshield and

collapsed the truck’s roof over the driver’s seat.1 Mobley continued driving a short

distance to an open area “out of the traffic” and with “lots of light,” where he

determined that he would surrender. When he exited his truck (through the

passenger door due to the damage on the driver’s side), he noticed a small retention

pond and — for reasons he asserts are unknown even to him — waded into its

center. By the time he was in the middle of the pond, police had surrounded the

pond, and a police helicopter was overhead shining its spotlight on him. Mobley

waded out of the pond to the waiting police officers on the western bank of the

pond, one of whom grabbed him by the hair and shoved him to the ground, pinning

him there and ordering him to surrender his hands to be cuffed. While Mobley was

on the ground, the officers struck and kicked him, including in the face. The

officers’ blows broke Mobley’s nose, his teeth, and his plastic dental plate.2 He


       1
          Mobley contends that the damage caused by the collision was minimal — in particular,
that the limb “as he would find out later, bent his driver[’]s door frame,” but the photograph he
introduced in support of his summary judgment opposition clearly shows the collapse of the
truck’s driver side roof. See Scott v. Harris, 

, 380, 

, 1776 (2007)
(holding that the district court did not have to accept the plaintiff’s description of his driving
where it was “blatantly contradicted by” video from the police car’s dash-mounted camera);
Pourmoghani-Esfahani v. Gee, 

, 1315 (11th Cir. 2010) (“Where the video
obviously contradicts Plaintiff's version of the facts, we accept the video’s depiction instead of
Plaintiff’s account.”); see also Feliciano v. City of Miami Beach, 

, 1253 (11th Cir.
2013) (plaintiff’s testimony can be discounted if it is “blatantly contradicted by the record”).
       2
         The officers contend that Mobley received some or all of his injuries when his truck
struck the tree, but for purposes of summary judgment we resolve this dispute in Mobley’s favor.
See 

.



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covered his face with his hands to protect it from the officers’ blows. The officers

also tased Mobley repeatedly while he was on the ground. Mobley eventually gave

up, moved his hands from in front of his face and placed them behind his back. An

officer handcuffed him, after which he was given medical attention.

       Mobley contends that eight officers were involved, directly or indirectly, in

his arrest. 3 The officers who physically participated in Mobley’s arrest were

Deputies Elliott, Johnson, and Yoder. Lieutenant Burdick was present at the scene,

but he did not physically assist in making the arrest. Deputies Bronson, Sheehan,

and Moore, and Sergeant Clapp were not present at the scene of the arrest.

       Mobley was taken to St. Mary’s hospital, where doctors found that he had a

broken nose, cuts and bruises along his arms and hands, and broken front teeth. He

later was diagnosed with “Post Traumatic Syndrome” and began suffering seizures.

In a state criminal trial arising out of his flight, he was convicted of assaulting

Officer Bronson with a deadly weapon and fleeing to elude arrest and was

sentenced to 15 years imprisonment.




       3
        The officers are Deputy Sheriff Jason Bronson, Lieutenant Richard Burdick, Sergeant
Kevin Clapp, Deputy Sheriff Edward Elliott, Deputy Sheriff Anthony Johnson, Deputy Sheriff
John Moore, Deputy Sheriff Kieran Sheehan, and Deputy Sheriff Scott Yoder.



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                                               II.

       On December 12, 2011,4 Mobley — by then an inmate at Wakulla

Correctional Institution — filed a pro se civil rights complaint under 42 U.S.C.

§ 1983 against the Sheriff’s Office, Sheriff Ric Bradshaw, and nine Sheriff’s

Office officers. 5 He claimed that the police had used excessive force when they

arrested him. (“The beating was unreasonable. Sadistic, unconstitutional, and

criminal.”) In addition to declaratory relief Mobley sought $185,000 in

compensatory damages and $625,000 in punitive damages from each defendant.

On June 1, 2012, the district court dismissed the claims against the Sheriff’s Office

and Sheriff Bradshaw under 28 U.S.C. § 1915(e)(2)(B)(ii), leaving only Mobley’s

claims against the nine officers in their individual capacities.

       On November 16, 2012, Mobley filed a proposed amended complaint,

seeking to add another defendant whose identity he claimed to have only recently

discovered. The magistrate judge assigned to the case recommended that the


       4
         The complaint was docketed in the district court on December 16, 2011, but it bears a
stamp indicating that it was delivered to Wakulla prison authorities on December 12, 2011.
Prisoners’ papers are deemed filed when surrendered to prison authorities. See Houston v. Lack,

, 275–76 (1988) (prisoner’s notice of appeal deemed filed “at the time petitioner
delivered it to the prison authorities for forwarding to the court clerk”); Garvey v. Vaughn, 

, 783 (11th Cir. 1993) (extending Houston’s “mailbox rule” to filing of a pro se prisoner
complaint under § 1983).
       5
        In addition to the eight officers Mobley alleges were involved in his arrest, the
complaint listed a ninth officer, “LT. Byrd,” but no such person worked for the Sheriff’s Office.
Mobley appears to have based “Byrd” on a court reporter’s attempted phonetic rendering of
Lieutenant Burdick’s name during Mobley’s criminal trial.



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amended complaint be dismissed as time-barred. On March 15, 2013, the district

court adopted the magistrate judge’s report and recommendations. But instead of

dismissing the amended complaint, the court’s order incorrectly dismissed

Mobley’s original complaint as time-barred and closed the case.

       Mobley appealed that decision on May 2, 2013, seeking reinstatement of his

original complaint.6 But then on October 1, 2013, the district court sua sponte

amended the “scrivener’s errors” in its March 15 order, dismissing the amended

complaint (instead of the original complaint) and reopening the case. That same

day, the court granted summary judgment to the remaining defendants on qualified

immunity grounds. Mobley then appealed that order. This is Mobley’s

consolidated appeal of the March 15 dismissal order and the October 1 summary

judgment order.

                                             III.

       The part of Mobley’s appeal challenging the district court’s dismissal of his

original complaint is moot. An issue becomes moot when it “no longer presents a

live controversy with respect to which the court can give meaningful relief.” Zinni

v. ER Solutions, Inc., 

, 1166 (11th Cir. 2012) (quotation marks

omitted), cert. denied 

(2013). We lack jurisdiction to rule on moot

       6
        In his brief to this Court, Mobley does not seek reinstatement of his proposed amended
complaint. He has thus abandoned the issue. Sapuppo v. Allstate Floridian Ins. Co., 

, 680 (11th Cir. 2014).



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questions and instead must dismiss. Soliman v. United States ex rel. INS, 

, 1242 (11th Cir. 2002).

      After Mobley filed his appeal, the district court sua sponte amended its

earlier order so that it dismissed Mobley’s proposed amended complaint (instead of

the original complaint) and reopened the case, giving him precisely the relief he

seeks insofar as the dismissal of his original complaint in the March 15, 2013 order

is concerned. The district court’s actions since Mobley’s first appeal have thus

“deprive[d us] of the ability to give the . . . appellant meaningful relief” in that

appeal. 

(quotation marks omitted). We will dismiss

Mobley’s appeal challenging the March 15, 2013 order dismissing his original

complaint.

                                          IV.

      That brings us to the October 1, 2013 order granting the defendants

summary judgment on qualified immunity grounds and dismissing the amended

complaint. We review de novo a grant of summary judgment on the basis of

qualified immunity, drawing all inferences and viewing all evidence in the light

most favorable to the nonmoving party. Gilmore v. Hodges, 

, 272

(11th Cir. 2013). The goal of qualified immunity is “to allow officials to carry out

discretionary duties without the chilling fear of personal liability.” McCullough v.

Antolini, 

, 1205 (11th Cir. 2009). To obtain qualified immunity, an



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official such as a police officer must first show he was “act[ing] within his

discretionary authority.” Morton v. Kirkwood, 

, 1280 (11th Cir.

2013). Once an official establishes that his activities were within that scope, the

plaintiff must demonstrate (1) that “the facts show that the official violated the

plaintiff’s constitutional rights” and (2) that “the law clearly established those

rights at the time of the alleged misconduct.” 

We may address those

two inquiries in either order. Pearson v. Callahan, 

, 236, 

, 818 (2009).

                                          A.

      Before addressing the first step of the qualified immunity analysis, we need

to clarify the factors that a court is to consider when determining whether the facts

show that an officer violated the plaintiff’s Fourth Amendment right to be free

from excessive force during an arrest.

      Freedom from unreasonable searches and seizures under the Fourth

Amendment “encompasses the right to be free from excessive force during the

course of a criminal apprehension.” Oliver v. Fiorino, 

, 905 (11th

Cir. 2009). Even so, the right to make an arrest “necessarily carries with it the

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

Graham v. Connor, 

, 396, 

, 1871–72 (1989). Indeed,

“the typical arrest involves some force and injury.” Reese v. Herbert, 

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1253, 1272 (11th Cir. 2008). We judge excessive force claims “under the Fourth

Amendment’s objective reasonableness standard.” Crenshaw v. Lister, 

, 1290 (11th Cir. 2009) (quotation marks omitted). That standard asks

whether the force applied “is objectively reasonable in light of the facts

confronting the officer,” a determination we make “from the perspective of a

reasonable officer on the scene” and not “with the 20/20 vision of hindsight.” 

omitted). We consider factors 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.” 

, 109 S. Ct. at 1872. We also consider “the

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

of force used, and . . . the extent of the injury inflicted.” Lee v. Ferraro, 

, 1198 (11th Cir. 2002).

      Some of our decisions have held that we should also consider as an

additional factor “whether the force was applied in good faith or maliciously and

sadistically.” Hadley v. Gutierrez, 

, 1329 (11th Cir. 2008); Slicker

v. Jackson, 

, 1233 (11th Cir. 2000). Before 1989 we used a four-

factor test to evaluate excessive force claims: “(1) the need for the application of

force; (2) the relationship between the need and the amount of force used; (3) the

extent of the injury inflicted[,] and[] (4) whether the force was applied in good



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faith or maliciously and sadistically.” Leslie v. Ingram, 

, 1536 (11th

Cir. 1986); see also Byrd v. Clark, 

, 1006 (11th Cir. 1986); Gilmere

v. City of Atlanta, 

, 1501 (11th Cir. 1985); Williams v. Kelley, 

, 697 (5th Cir. 1980). 7

       In 1989, however, the Supreme Court held that the test for excessive force

during an arrest is objective reasonableness under the Fourth Amendment.

, 109 S. Ct. at 1872. “An officer’s evil intentions will not

make a Fourth Amendment violation out of an objectively reasonable use of force;

nor will an officer’s good intentions make an objectively unreasonable use of force

constitutional.” 

result, the Court held that “consideration of whether the

individual officers acted in ‘good faith’ or ‘maliciously and sadistically for the

very purpose of causing harm[]’ is incompatible with a proper Fourth Amendment

analysis.” 

words, we had been getting the test wrong.

       In 1990 we confirmed that the post-Graham test in this circuit is “whether

the officers’ actions are objectively reasonable in light of the facts and

circumstances confronting them, without regard to their underlying intent and

motivation.” Samples v. City of Atlanta, 

, 1550 (11th Cir. 1990)

(quotation marks omitted, emphasis added) (citing 

, 109


       7
        In Bonner v. City of Prichard, 

, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.


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). Thereafter, however, we backslid into our old erroneous, sadistic

and malicious factor ways. See 

(2008); 

(2000). The error was innocent enough to be understandable but error

nonetheless. 8

       When two or more of our cases conflict, we are obligated to follow the

earlier one. United States v. Mozie, 

, 1285 (11th Cir. 2014);

Offshore of the Palm Beaches, Inc. v. Lynch, 

, 1256 (11th Cir. 2014)

(“[W]hen faced with an intracircuit split, we look to the earliest case not abrogated

by the Supreme Court or by this Court sitting en banc.”). Our Samples decision

predates Slicker and Hadley, so it trumps them on the issue of whether the

subjective intent of the officer, specifically whether he acted maliciously and

sadistically, is to be considered in a Fourth Amendment excessive force case. It is

not to be considered. The test is not a subjective one but asks whether the officer’s

       8
          It began with Moore v. Gwinnett County, 

(11th Cir. 1992), a qualified
immunity excessive force case. Moore was decided three years after Graham but it involved an
arrest and accompanying force that took place in 1988, a year before Graham was decided. 

Along with the objective factors, we considered the “good faith or maliciously and
sadistically” subjective-intent factor. 

That was not, however, error in the Moore
case because qualified immunity law requires that we judge the officer’s conduct in light of the
law in effect at the time of that conduct. See, e.g., Courson v. McMillian, 

, 1487
(11th Cir. 1991); Hamm v. Powell, 

, 771 (11th Cir. 1989). But see Post v. City of
Ft. Lauderdale, 

, 1559–60 (11th Cir. 1993) (citing Graham and applying only the first
three Leslie factors to decide a qualified immunity defense even though the arrest at issue took
place in 1988). Under the pre-Graham law that applied at the time of the arrest at issue in Moore,
it was clearly established that one of the factors governing an excessive force claim was the
officers’ subjective intent. See 

. We read Moore to be articulating the
law that was clearly established at the time of the pre-Graham arrest. We don’t read either
Slicker or Hadley as doing that.



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actions in applying the force were objectively reasonable. We do not consider

whether an officer acted in good faith or sadistically and maliciously. 

, 109 S. Ct. at 1872; 

n.7; 

.

                                                    B.

       We now turn to the question of whether the facts in this case show that the

defendants violated Mobley’s constitutional rights. See 

,

129 S. Ct. at 818. Mobley contends that Elliott, Johnson, and Yoder 9 violated his

rights by using excessive force during his arrest. He contends that the rest of the

officers violated his rights by not stopping Elliott, Johnson, and Yoder from using

that force. See 

–94 (holding that an officer in a

position to intervene is liable for nonfeasance if he does not “take reasonable steps

to protect the victim of another officer’s use of excessive force”). Mobley

concedes that the officers were acting within their discretionary authority when

they pursued and arrested him, so to defeat qualified immunity he must first

demonstrate an issue of material fact about whether the officers violated his

constitutional rights. See 

–81.




       9
         Mobley’s brief does not identify these officers by name, but they are the officers who
the defendants concede participated in Mobley’s arrest. In his complaint, Mobley identifies
Johnson and Yoder as the officers who tased him while he was on the ground.


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      Officers on the scene of Mobley’s arrest, responding to Deputy Bronson’s

alert bulletin, would have known that Mobley was a fleeing suspect who had struck

a police officer with his truck and then led police on a reckless, high-speed chase.

Those officers would also have seen Mobley wade into the middle of a pond in

what they would have reasonably assumed was a continuing attempt to evade

capture. Finally, those officers would have seen Mobley refusing to surrender his

hands to be cuffed despite the application of escalating force and repeated use of a

taser. In those circumstances, striking, kicking, and tasing the resisting and

presumably dangerous suspect in order to arrest him were not unreasonable uses of

force and did not violate Mobley’s constitutional rights. See Saucier v. Katz, 

, 205, 

, 2158 (2001), overruled in part on other grounds by

Pearson v. Callahan, 

, 

(2009) (“If an officer

reasonably, but mistakenly, believed that a suspect was likely to fight back . . . the

officer would be justified in using more force than in fact was needed.”); 

–97, 109 S. Ct. at 1872 (“The calculus of reasonableness must

embody allowance for the fact that police officers are often forced to make split-

second judgments — in circumstances that are tense, uncertain, and rapidly

evolving — about the amount of force that is necessary in a particular situation.”);

cf. 

–92 (use of police dog to aid in capture of suspect

was not unreasonable even when dog bit suspect 31 times after suspect, fleeing



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through a wooded area, “laid on the ground and shouted out his location in an

attempt to surrender” but before he was secured in handcuffs). Mobley now

contends that he posed no threat, but he does not point to any facts that would have

made it objectively unreasonable for the officers to believe that he did.

      In those circumstances, five of the factors we consider from the perspective

of a reasonable officer on the scene — severity of the crime, whether the suspect

poses an immediate threat to safety, whether he is actively resisting or attempting

to evade arrest, the need for the application of force, and the relationship between

the need and amount of force used — weigh against Mobley. See 

, 109 S. Ct. at 1872; 

. The only factor on which

Mobley has alleged facts arguably in his favor is the extent of injury inflicted. See

. Mobley contends that he suffered a broken nose, broken

teeth, cuts, bruises, and ongoing psychological damage from the officers’ actions

during his arrest. Those alleged injuries are certainly not trivial. But as we have

pointed out, “the typical arrest involves some force and injury.” Reese, 

. When more force is required to effect an arrest without endangering officer

safety, the suspect will likely suffer more severe injury, but that alone does not

make the use of that amount of force unreasonable. (If it did, deadly force could

never be used no matter what the circumstances were.) Even assuming, as we

must at the summary judgment stage, that Mobley’s alleged injuries did not occur



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when he wrecked his truck, the injuries he suffered were not disproportionate to

the force that the officers reasonably could have believed was required to subdue

him.

       The decisions Mobley relies on to demonstrate that the officers used

excessive force are not on point. In 

, the plaintiff was

already arrested and in handcuffs when “officers kicked him in the ribs and beat

his head on the ground.” In 

–74, we concluded that

because the defendant officer lacked probable cause to make an arrest he was “not

justified in using any force against Reese.” (Emphasis added.) Under those

circumstances, we held that even de minimis force would have been unreasonable.

the Reese case the plaintiff was accused of only a minor misdemeanor

“for which less force is generally appropriate.” 

Similar circumstances

existed in 

, in which the plaintiff was accused of nothing

more than “honking [her] horn on a busy downtown thoroughfare” and, upon

being stopped, did not “actively resist[] or attempt[] to flee.” The defendant officer

nonetheless “slammed her head against the trunk [of her car] after she was arrested

and secured in handcuffs.” 

Smith v. Mattox, 

, 1419–20

(11th Cir. 1997), we premised our conclusion that force was excessive in a “very

close case” on the basis that the plaintiff “was offering no resistance at all” to

having his hands cuffed.



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      Mobley, by contrast, was being arrested for (and was later convicted of) the

serious crime of assaulting a police officer with a deadly weapon. See 

; 

. And Mobley concedes that he had refused to

surrender his hands, unlike the plaintiff in Smith. 

–20.

Unlike the plaintiffs in Slicker and Lee, Mobley admits that the officers did not

apply any force after he finally surrendered his hands to be cuffed. 

; 215 F.3d at 1233. Our decisions demonstrate that the point at which a

suspect is handcuffed and “pose[s] no risk of danger to the officer” often is the

pivotal point for excessive-force claims. We have held a number of times that

severe force applied after the suspect is safely in custody is excessive. See Galvez

v. Bruce, 

, 1243 (11th Cir. 2008); 

; 

.

      But force applied while the suspect has not given up and stopped resisting

and may still pose a danger to the arresting officers, even when that force is severe,

is not necessarily excessive. See 

; cf. Zivojinovich v.

Barner, 

, 1073 (11th Cir. 2008) (use of taser on a handcuffed suspect

was not excessive when officer reasonably believed that suspect “who ha[d]

repeatedly ignored police instructions and continue[d] to act belligerently toward

police” was spitting blood on him). Mobley has not pointed to any circumstances

before he quit resisting and was handcuffed that show the force applied against him



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was objectively unreasonable. Deputies Yoder, Johnson, and Elliott therefore are

entitled to summary judgment on the ground of qualified immunity because under

the circumstances their conduct did not violate Mobley’s constitutional rights. 10

       Summary judgment is also appropriate for the remaining officers who did

not participate directly in the arrest because a police officer has no duty to

intervene in another officer’s use of force when that use of force is not excessive.

See 

(noting that when an officer “did not violate [the

suspect]’s right to be free from excessive force,” his partner “had no attendant

obligation to intervene”).

       The district court did not err in granting summary judgment in favor of the

officers.

                                              III.

       For these reasons, we DISMISS as moot appeal no. 13-11972, in which

Mobley challenges the March 15, 2013 order dismissing his original complaint. In

appeal no. 13-15726, we AFFIRM the October 1, 2013 order granting summary

judgment in favor of the officers on his amended complaint.




       10
           Because we hold that the officers did not violate Mobley’s Fourth Amendment right to
be free from excessive force during his arrest, we need not decide whether they would be entitled
to qualified immunity even if they had done so. See Pearson v. Callahan, 

, 129 S.
Ct. 808 (2009); Case v. Eslinger, 

, 1325 (11th Cir. 2009).



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