Case: 19-10944   Date Filed: 01/10/2020    Page: 1 of 14


                                                         [DO NOT PUBLISH]

          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 19-10944
                       Non-Argument Calendar
                     ________________________

                D.C. Docket No. 2:16-cv-00355-MHH

MARIO MARTIN,

                                          Plaintiff-Appellee-Cross Appellant,

                                versus

SERGEANT DEWAYNE HOWARD,

                                         Defendant-Appellant-Cross Appellee,

CITY OF BIRMINGHAM, ALABAMA,
BIRMINGHAM POLICE DEPARTMENT,
                                                   Defendants-Cross Appellees.



                     ________________________

             Appeals from the United States District Court
                for the Northern District of Alabama
                    ________________________


                          (January 10, 2020)
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Before WILLIAM PRYOR, JILL PRYOR, and ANDERSON, Circuit Judges

PER CURIAM:

      Dewayne Howard, a retired Sergeant with the Birmingham Police

Department, appeals the district court’s denial of his motion for summary

judgment on the grounds of qualified immunity. Separately, Mario Martin cross-

appeals from the district court’s grant of summary judgment to the City of

Birmingham, Alabama, and the denial of his motion for leave to amend his

complaint. For the reasons that follow, we affirm the district court’s denial of

qualified immunity and dismiss Martin’s appeal.

                                I. BACKGROUND

      Mario Martin is a concert and event promoter. He scheduled a performance

by the rapper “Yo Gotti” at the Bill Harris Arena in Birmingham, Alabama, but a

last-minute change forced him to change the venue to the Club Atlantis. However,

Yo Gotti failed to show and the gathered audience grew restless and angry.

Martin, along with his associates, attempted to leave the Club and return to the

hotel to ascertain the nature of the rapper’s absence.

      At this point, Martin alleges that he was stopped by several off-duty officers

with the Birmingham, Alabama, Police Department, who had been contracted by

the Club to provide security. The officers prevented Martin from leaving and

demanded that he pay them for their security services. A disagreement ensued as



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to whether Martin or the Club were responsible for paying the officers. The

officers informed Martin that if he did not pay them, he would be charged with

nine counts of theft of services—one count for each of the unpaid officers.

Martin’s attempts to include Jeremy Cooper, the manager of the Club, in the

discussion proved fruitless, and he surrendered to the officers the $200.00 he had

with him. When this proved unsatisfactory to the officers, Martin telephoned one

of his associates, who provided him with another $400.00, which he provided to

the officers, again, not satisfying them.

      It was at this point that Sergeant Dewayne Howard arrived on the scene.

Howard became aware that many of his officers had been dispatched to the Club

and, curious as to the reason for the en masse dispatchment, decided to investigate

himself. Upon arriving, Howard discovered that the crowd, restless and upset at

the performer’s cancellation, had started fighting, which precipitated the

dispatches. The officers met Howard at the scene and informed him that Martin

had not paid them, so Howard confronted Martin about the matter. Martin alleges

that Howard threatened that he would arrest him if Martin did not pay the officers.

In response, Martin agreed to pay the officers from his percentage of the event’s

bar sales, an amount totaling about $575.00. Howard and the officers then allowed

Martin to address the crowd to inform them that their tickets would be refunded.

After Martin returned, Howard agreed to escort Martin from the venue.



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      Martin followed up with the police department, filing complaints alleging

that his money had been taken from him by police officers. The police department

tasked an internal affairs investigator with investigating Martin’s allegations. The

investigator determined that Martin was not detained and that the officers had not

threatened him with criminal charges if he did not pay them. The investigator

ultimately concluded that Martin’s complaint was not supported by the available

evidence and did not discipline any of the officers alleged to have been involved.

      On February 29, 2016, Martin filed the instant case in federal court against

the City of Birmingham, the Birmingham Police Department, Sergeant Howard,

the unknown officers, and the Club. Martin’s complaint included a claim under 42

U.S.C. § 1983 that the defendants violated his Fourth Amendment right to be free

from unreasonable seizures; a section 1983 claim against the City for failure to

train, supervise, or discipline its officers; a § 1985 conspiracy claim against all

defendants; an unjust enrichment claim against all defendants; and a negligence

and wantonness claim against all defendants. Later, Martin sought to amend his

complaint to add the names of the previously unknown officers, which the district

court denied. The district court granted the defendants summary judgment on all

of Martin’s claims except for his section 1983 claim against Howard and his claims

for unjust enrichment and negligence and wantonness against the Club. Howard

timely appealed to us. Martin cross-appealed the district court’s grant of summary



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judgment to the City on Martin’s section 1983 claim and its denial of his motion

for leave to amend his complaint. We address each in turn.

                            II. HOWARD’S APPEAL

      We review the district court’s denial of qualified immunity de novo. Nolin

v. Isbell, 

, 1255 (11th Cir. 2000). We begin by resolving “all issues

of material fact in favor of the plaintiff” and then “answer the legal question of

whether the defendants are entitled to qualified immunity under that version of the

facts.” Thornton v. City of Macon, 

, 1397 (11th Cir. 1998).

Qualified immunity protects “government officials performing discretionary

functions” from suit “unless the conduct which is the basis for the suit violates

‘clearly established federal statutory or constitutional rights of which a reasonable

person would have known.’” GJR Invs. v. Cnty. of Escambia, 

,

1366 (11th Cir. 1998) (alteration omitted) (quoting Harlow v. Fitzgerald, 

, 818 (1982)).

      We begin by determining whether the official in question was performing a

discretionary function. Holloman v. Harland, 

, 1264 (11th Cir.

2004). Because Sergeant Howard was indisputably acting within his discretionary

authority at the time of the conduct in question, the burden shifts to Martin to

prove that Howard is not entitled to summary judgment on the grounds of qualified

immunity. 

Martin must demonstrate that (1) Howard violated his



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“constitutional rights” and that (2) those rights “were clearly established at the time

of the putative misconduct.” Loftus v. Clark-Moore, 

, 1204 (11th

Cir. 2012) (alteration omitted) (quoting Pearson v. Callahan, 

, 226

(2009)). We are free to decide these inquiries in either order, depending on what

makes the most sense in the circumstances before us. See 

.

       Here, we start with Martin’s claim that Howard violated his constitutional

rights. Pursuant to the Supreme Court’s holding in Johnson v. Jones, we “take, as

given, the facts that the district court assumed when it denied summary judgment.”

, 319 (1995). The district court indicated that

       Mr. Martin maintained that Club Atlantis was supposed to pay the off-
       duty officers. Mr. Martin did not have a written agreement with Club
       Atlantis, so Mr. Martin’s dispute with Mr. Cooper amounted to a he
       said, [s]he said disagreement. According to Mr. Martin, Sergeant
       Howard credited Mr. Cooper’s version of events and told Mr. Martin
       that if he did not pay the officers within 15 minutes, he would go to jail.

District Court Order, Doc. 66, at 16. Martin argued before the district court that

this conduct violated his Fourth Amendment rights. He argued, inter alia, that

Howard violated his Fourth Amendment rights when Howard seized his property

by threatening him with arrest to compel the seizure. The district court agreed with

Martin. It determined that a jury “reasonably could conclude that Sergeant

Howard violated Mr. Martin’s Fourth Amendment rights when he conditioned Mr.

Martin’s release from detention on Mr. Martin surrendering his money to the off-

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duty officers.” The district court then concluded that this right was clearly

established at the time of the incident, citing our cases applying the Fourth

Amendment and our opinion in Wright v. Sheppard, in which we held, “If an

officer departs from the role of a neutral law enforcement officer by attempting to

enforce a private debt collection, and engages in conduct that effectively

intimidates an alleged debtor into refraining from exercising her legal rights, then

the officer exceeds constitutional limits on his authority.” 

, 673 (11th

Cir. 1990) (citing Booker v. City of Atlanta, 

(11th Cir. 1985)).

Howard contends that this was incorrect. We disagree.

      The Fourth Amendment protects “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures.” U.S. Const. amend. IV. “A seizure of property occurs when there is a

‘meaningful’ interference with a person’s possessory interest in it. Generally, the

seizure of personal property is per se unreasonable when not pursuant to a warrant

issued upon probable cause.” Crocker v. Beatty, 

, 1136 (11th Cir.

2018) (citing United States v. Virden, 

, 1321 (11th Cir. 2007)).

Though there are several exceptions to this “general rule,” they largely relate to

seizure of property in the context of an ongoing law enforcement investigation.

See generally Minnesota v. Olson, 

, 100 (1990) (noting the exigent

circumstances exception to the warrant requirement).



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          It is clear to us that at the time of Martin’s seizure, he had a constitutional

interest in his property—that is, the $575.00 he paid to the officers after Howard’s

threat. And when Howard directed Martin to give the officers his property,

Howard effectively “seized” the property within the meaning of the Fourth

Amendment. At the time of this seizure, Howard was not operating pursuant to a

warrant issued upon a showing of probable cause, as the Fourth Amendment

requires. Nor were “exigent circumstances,” such as the imminent destruction of

evidence, present that would justify Howard’s warrantless seizure. Indeed, the

currency that Martin held, and then surrendered upon threat of arrest, at the time of

the incident was not evidence in any sense of the word—rather, it was Martin’s

personal property, to which the off-duty officers, rightly or wrongly, felt they were

entitled. We conclude, therefore, that Howard violated Martin’s constitutional

rights.

          Our inquiry does not end here. We must next consider whether Martin’s

constitutional rights were clearly established at the time of the incident. As we

have previously held

          [a] right may be clearly established for qualified immunity purposes in
          one of three ways: (1) case law with indistinguishable facts clearly
          establishing the constitutional right; (2) a broad statement of principle
          within the Constitution, statute, or case law that clearly establishes a
          constitutional right; or (3) conduct so egregious that a constitutional
          right was clearly violated, even in the total absence of case law.




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Lewis v. City of W. Palm Beach, Fla., 

, 1291–92 (11th Cir. 2009)

(citations omitted). A broad statement of principle “may give notice to officers,

provided that the decisions clearly apply to the situation at hand” and that it is

“specific enough to give the officers notice of the clearly established right.”

Mercado v. City of Orlando, 

, 1159 (11th Cir. 2005).

      We conclude that our holding in Wright—that an officer exceeds the

constitutional limits on his authority by attempting to enforce a private debt

collection—was sufficient to put Howard on notice that his actions violated

Martin’s clearly established rights. As we have explained, “[e]xact factual identity

with a previously decided case is not required,” so long as the available law

provided the official with “fair warning” that his conduct violated the constitution.

Coffin v. Brandau, 

, 1013 (11th Cir. 2011) (citation and quotation

omitted). We conclude that the requisite “fair warning” existed here. Accordingly,

we affirm the district court’s order as to this issue.

                         III. MARTIN’S CROSS-APPEAL

      In addition to defending the district court’s denial of qualified immunity to

Sergeant Howard, Martin also cross-appeals the district court’s decisions to

(1) deny his motion to amend his complaint and (2) its grant of summary judgment

to the City of Birmingham. Before reaching the merits of Martin’s arguments, “we

have a special obligation to satisfy ourselves . . . that we have jurisdiction” to do



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so. See Tamiami Partners, Ltd. by & Through Tamiami Dev. Corp. v. Miccosukee

Tribe of Indians, 

, 1221 (11th Cir. 1999). Under 28 U.S.C. § 1291,

our jurisdiction is limited to “final decisions” issued by district courts. “As a

general rule, an appeal may be taken . . . only where the district court has disposed

of all claims against all parties.” Leslie v. Hancock Cnty. Bd. of Educ., 

, 1344 (11th Cir. 2013) (quoting Hudson v. Hall, 

, 1293 (11th

Cir. 2000)) (emphasis added).

        The exceptions to this rule are narrow and well-delineated. As we have

routinely explained, denials of qualified immunity fall within the collateral order

doctrine—so long as “the disputed issue involves whether or not the defendant’s

conduct constitutes a violation of clearly established law”—and public officials

“may appeal such a decision because it is considered a final, collateral order

regarding qualified immunity.” Johnson v. Clifton, 

, 1090 (11th Cir.

1996) (citing Mitchell v. Forsyth, 

, 528 (1985)). Accordingly,

Howard’s appeal of the district court’s denial of qualified immunity is properly

before us, even though it is not a “final judgment” under section 1291, because it is

an appeal in which the “disputed issue involves whether or not the defendant’s

conduct constitutes a violation of clearly established law.” 

.




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      Further, Federal Rule of Civil Procedure 54 carves out a discrete exception

in an action that “presents more than one claim for relief . . . or when multiple

parties are involved.” Fed. R. Civ. Pro. 54(b). In that case, “the court may direct

entry of a final judgment as to one or more, but fewer than all, claims or parties

only if the court expressly determines that there is no reason for delay.” 

any order “that adjudicates fewer than all of the claims or rights and liabilities of

fewer than all the parties does not end the action . . . and may be revised at any

time before the entry of a judgment adjudicating all the claims and all the parties’

rights and liabilities.” 

have explained,

      An order is appealable under Rule 54(b) when three conditions are
      satisfied. First, the order must be “final,” as traditionally defined under
      section 1291, as to one or more, but fewer than all, of the multiple
      claims or parties. Second, if the order is final as to a claim or party, the
      district court must direct entry of judgment. Third, the district court
      must expressly determine that there is no just reason for delay.

Mathis v. Zant, 

, 1371 (11th Cir. 1990) (citations omitted). In other

words, as our sister circuit explained, “an order which disposes of one or more

parties or claims but does not end the litigation must either be certified as final

pursuant to Rule 54(b) or be disposed of with the remainder of litigation at the

conclusion of the entire case in compliance with Rule 58.” Willhauck v. Halpin,

, 793 (1st Cir. 1990).

      Here, the orders denying Martin’s request to amend his complaint and

granting the City of Birmingham summary judgment on Martin’s section 1983

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claim, which he cross-appeals to us, were not expressly certified as a “final

judgment” in compliance with Rule 54(b). Accordingly, we may only hear them if

they fit within our pendent appellate jurisdiction.

      “Under the pendent appellate jurisdiction doctrine, we ‘may address

otherwise nonappealable orders if they are ‘inextricably intertwined’ with an

appealable decision or if ‘review of the former decision is necessary to ensure

meaningful review of the latter.’” Hudson v. Hall, 

, 1294 (11th Cir.

2000) (cleaned up) (quoting Summit Med. Assoc., P.C. v. Pryor, 

,

1335 (11th Cir. 1999)). A nonappealable order is “inextricably intertwined” with

an appealable order only if determination of the pendent issue is “essential to the

resolution of properly appealed collateral orders.” Swint v. Chambers Cty.

Comm’n, 

, 51 (1995) (quotation omitted).

      We conclude that we do not have pendent appellate jurisdiction over

Martin’s cross-appeal. The question of whether a municipality is liable for a

section 1983 claim concerns a determination as to whether “the execution of a

government’s policy or custom . . . inflicts [an] injury,” Monell v. Dep’t of Soc.

Servs., 

, 696 (1978), is entirely separate from our qualified immunity

analysis, which questions whether an individual public official violated a plaintiff’s

clearly established constitutional rights. See 

n.1. “[T]he

district court’s grant of summary judgment to the [municipality under Monell] . . .



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does not fall within our pendent appellate jurisdiction” in a qualified immunity

appeal. 

question of whether the district court properly denied Martin’s

motion under Rule 15(a) to amend his complaint to replace the fictitious names of

defendants with their actual names is separate from our qualified immunity

analysis. Determining whether the district court abused its discretion under Rule

15(a) requires us to evaluate whether there was “a substantial reason to deny leave

to amend,” Thomas v. Town of Davie, 

, 773 (11th Cir. 1988), like

“undue delay, bad faith or dilatory motive on the part of the movant, repeated

failure to cure deficiencies by amendments previously allowed, undue prejudice to

the opposing party by virtue of allowance of the amendment, futility of

amendment, etc.” Foman v. Davis, 

, 182 (1962). These questions are

answered by looking to a party’s conduct in the course of litigation, which are

altogether disentangled from the merits of that party’s case. In other words, the

questions of qualified immunity and the propriety of the district court’s decision to

not grant Martin leave to amend his complaint pull on threads of a different cloth

and are not intertwined so as to allow us to exercise pendent appellate jurisdiction

over them. Accordingly, we dismiss Martin’s cross-appeal.




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                                IV. SUMMARY

      Our review persuades us that the district court appropriately denied Sergeant

Howard qualified immunity and we affirm the district court’s opinion as to that

issue. Because we determine that we are without jurisdiction to hear Martin’s

cross-appeal concerning the district court’s grant of summary judgment to the City

of Birmingham on his section 1983 claim and its denial of his motion for leave to

amend his complaint, we dismiss his cross-appeal.

      The district court’s order is AFFIRMED. We DISMISS Martin’s cross-

appeal.




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