[DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS
                                                      FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                JANUARY 11, 2008
                            No. 07-10354        THOMAS K. KAHN
                                                     CLERK
                         Non-Argument Calendar
                       ________________________

                 D. C. Docket No. 04-00315-CV-T-24-EAJ

ROBERT CRAIG WELLS,


                                                  Plaintiff-Appellant,

                                  versus

NORMAN C. CRAMER,
KENNETH L. BURROUGHS,
TERRY R. METTS,
CHRISTOPHER TAYLOR,
JEFFERY S. PREISING,


                                                  Defendants-Appellees.

                       ________________________

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

                             (January 11, 2008)

Before ANDERSON, BIRCH, and HULL, Circuit Judges.
PER CURIAM:

       Robert Craig Wells, a Florida prisoner proceeding pro se, appeals the district

court’s orders denying his motion under Federal Rule of Civil Procedure 59(e) and

granting summary judgment in favor of the defendants in Wells’s civil rights suit

against officers of the Pinellas County Sheriff’s Office for excessive force under

42 U.S.C. § 1983. The district court held that Wells’s Rule 59(e) motion was filed

untimely, but addressed the motion on its merits and denied it. We determine that

Wells’s motion was timely filed. We also conclude that the district court erred in

granting summary judgment to the Appellees and in determining, at this stage of

the case, that they are entitled to qualified immunity. For the following reasons,

the district court’s order is VACATED and this case is REMANDED for further

proceedings.

                                   I. BACKGROUND

       Wells filed a pro se civil rights complaint pursuant to § 1983 naming

Norman C. Cramer, Kenneth L. Burroughs, Terry R. Metts, Christopher Taylor,

Jeffrey S. Preising (“the appellees”), all officers in the Pinellas County Sheriff’s

Office, as defendants.1 Wells alleged that the appellees “conspired to fabricate,



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          Wells named Anne S. Rahrer, and Sandra A. Jacobs as additional defendants in his
original complaint under § 1983, which was dismissed by the district court. He did not name
them in his amended complaint.

                                               2
falsify and conceal evidence” to justify their use of excessive force against him

during his arrest on 19 February 2000. The appellees filed a motion to dismiss,

which the district court construed as a motion for summary judgment. In response

to the appellees’ motion, Wells filed a declaration pursuant to 28 U.S.C. § 1746,

signed under penalty of perjury, stating that Cramer tackled him and then the

appellees placed him in handcuffs. Wells claimed that after he was handcuffed, the

appellees proceeded to beat him while he lay face down on the ground. Wells

averred further that the appellees “high-fived” each other while they took turns

beating him. (R1-79, Ex. A at 4). The district court granted summary judgment in

favor of the appellees. The district court construed Wells’s subsequent motion to

alter or amend judgment as being filed pursuant to both Rule 59(e) and Federal

Rule of Civil Procedure 60(b) and denied the motion as untimely and on its merits.

      On appeal, Wells argues that the district court abused its discretion in

denying his Rule 59(e) motion because it relied on the appellees’ arguments

without examining his motion. Further, Wells asserts that his motion was timely

filed because intervening Saturdays, Sundays, and holidays did not count towards

the ten-day filing period. Finally, Wells contends that his motion was an

appropriate filing to address the district court’s legal errors. The appellees concede

that the district court abused its discretion in finding that Wells’s motion was



                                           3
untimely and request that we remand the case to the district court for further

consideration.

                                 II. DISCUSSION

      We review the denial of a Rule 59(e) motion for an abuse of discretion.

Lambert v. Fulton County, Ga., 

, 598 (11th Cir. 2001). “‘A district

court abuses its discretion if it applies an incorrect legal standard, follows improper

procedures in making the determination, or makes findings of fact that are clearly

erroneous. A district court may also abuse its discretion by applying the law in an

unreasonable or incorrect manner.’” Klay v. Humana, Inc., 

, 1251

(11th Cir. 2004) (citation omitted). We hold pro se pleadings to a less stringent

standard than pleadings drafted by attorneys and construe them liberally.

Tannenbaum v. United States, 

, 1263 (11th Cir. 1998) (per curiam).

Issues not raised in a party’s brief are considered abandoned. Doe v. Dekalb

County Sch. Dist., 

, 1445 n.4 (11th Cir. 1994).

A. Timeliness of Wells’s Rule 59(e) Motion

      An appellant has ten days from the entry of a judgment to file a timely rule

59(e) motion. See Fed. R. Civ. P. 59(e). A court must exclude intervening

holidays, Saturdays, and Sundays when calculating time periods of eleven days or

less. Fed. R. Civ. P. 6(a)(2). “The “mailbox rule” allows a pro se prisoner’s filings



                                           4
to be dated as of the date the prisoner delivers it to prison authorities or places it in

the prison mail system. See e.g., Adams v. United States, 

, 1341

(11th Cir. 1999) (holding that a pro se prisoner’s motion to vacate is deemed filed

on the date he delivers it to prison authorities for mailing). A timely-filed Rule

59(e) motion tolls the time period for filing a timely notice of appeal. Fed. R. App.

P. 4(a)(4)(iv).

       In this case, the district court abused its discretion in ruling that Wells’s

motion to alter or amend judgment was untimely. The district court entered its

judgment on 14 November 2006. Wells filed his motion on 29 November 2006,

when he gave it to prison authorities. Excluding the Thanksgiving holiday and

intervening Saturdays and Sundays, Wells had until 29 November 2006 to file his

motion with prison authorities to file a timely motion. Therefore, the district court

abused its discretion in ruling that Wells’s motion was untimely.2 Nevertheless,

the district court addressed and ruled on the merits of Wells’s motion. The district

court stated that, because Wells did not offer “anything legally or factually new to

warrant further review[,] . . . [h]is motion . . . fails to demonstrate a basis for

relief.” (R1-88 at 3). Therefore, even though the district court incorrectly



       2
         We have jurisdiction over the underlying order granting summary judgment because
Wells’s timely post-judgment motion tolled the time period to file a notice of appeal. Fed. R.
App. P. 4(a)(4)(iv).

                                                5
calculated the time Wells had to file a Rule 59(e) motion, the error was harmless,

and we are not required to remand the case on this ground. Accordingly, we may

review the district court’s underlying order granting the appellees summary

judgment.

B. Excessive Force

       Wells argues that the district court erred in granting summary judgment to

the appellees because his allegations of excessive force were unrelated to his

attempts to evade the appellees by car and on foot. Further, Wells maintains that

he posed no threat to others and claims that the appellees’ actions were not

objectively reasonable. Finally, Wells contends that his declaration created a

material dispute of fact concerning the manner in which the appellees effected his

arrest.3

       We review de novo a district court’s grant of summary judgment, viewing

all evidence and inferences in a light most favorable to the non-moving party.

Burton v. Tampa Hous. Auth., 

, 1276-77 (11th Cir. 2001).

“‘Summary judgment is appropriate when there are no genuine issues of material

fact and the movant is entitled to judgment as a matter of law.’” 

(citation omitted). When considering a motion for summary judgment, all


       3
        On appeal, Wells does not argue that the appellees were deliberately indifferent to his
medical needs, so we do not consider this claim.

                                                6
reasonable doubts about the facts are resolved in favor of the nonmovant. Burton

v. City of Belle Glade, 

, 1187 (11th Cir. 1999). “‘Genuine disputes

are those in which the evidence is such that a reasonable jury could return a verdict

for the non-movant. For factual issues to be considered genuine, they must have a

real basis in the record.’” Mize v. Jefferson City Bd. of Educ., 

, 742

(11th Cir. 1996) (citation omitted). If the initial burden is met, then the non-

moving party may not rest on his pleadings, but must “go beyond the pleadings and

by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and

admissions of file’, designate ‘specific facts showing that there is a genuine issue

for trial’” in order to avoid summary judgment. Graham v. State Farm Mut. Ins.

Co., 

, 1281-82 (11th Cir. 1999) (per curiam) (citation omitted).

      Though the facts alleged in an inmate’s sworn pleading are sufficient to

defeat a motion for summary judgment and a separate affidavit is not necessary,

mere conclusions and unsupported factual allegations are legally insufficient to

defeat summary judgment. Sammons v. Taylor, 

, 1544 n.5 (11th

Cir. 1992). Unsworn statements, even from pro se parties, should not be

considered “in determining the propriety of summary judgment.” Gordon v.

Watson, 

, 123 (5th Cir. 1980) (per curiam). Federal law, however,

does provide an alternative to making a sworn statement, but requires that the



                                           7
statement include a handwritten averment, signed and dated, that the statement is

true under the penalties of perjury. See 28 U.S.C. § 1746.

      “The Fourth Amendment provides the right to be ‘free from the use of

excessive force in the course of an investigatory stop or other “seizure” of the

person.’” Beshers v. Harrison, 

, 1265 (11th Cir. 2007) (citation

omitted). To establish an excessive-force claim, the plaintiff must establish that he

was “seized” within the meaning of the Fourth Amendment. 

Amendment seizure occurs when “‘there is a governmental termination of freedom

of movement through means intentionally applied.’” 

alone is

not enough for § 1983 liability; the seizure must be ‘unreasonable.’” 

(alterations in original) (citation omitted). The “reasonableness” inquiry is

objective: “‘the question is whether the officer’s actions are “‘objectively

reasonable’” in light of the facts and circumstances confronting him, without

regard to his underlying intent or motivation.’” Id.(citation omitted).

      A court must view the facts from the “‘perspective of a reasonable officer on

the scene, rather than with the 20/20 vision of hindsight’” and must allow “‘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.’” 

In



                                            8
assessing the reasonableness of the use of force a court must consider a number of

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.” Lee v. Ferraro, 

, 1197-1198 (11th Cir. 2002). We have recognized “that the typical arrest

involves some force and injury.” Rodriguez v. Farrell, 

, 1351 (11th

Cir. 2002).

      In Lee, we held that a police officer used excessive force and was not

entitled to qualified immunity, even though he was lawfully permitted to arrest the

plaintiff and secure her with handcuffs. 

. After securing the

plaintiff with handcuffs, the police officer had slammed the plaintiff’s head against

the trunk of her car, even though she was not resisting the officer. 

We

determined that the plaintiff posed no threat to the officer after she was arrested

and secured in handcuffs, so the force the officer used after the arrest was

unnecessary and disproportionate. 

      On the record in this case, we conclude that the district court reversibly erred

by granting summary judgment to the appellees. Wells alleges sufficient facts to

create a genuine dispute of material fact when viewing these facts in a light most

favorable to Wells. The evidence shows that the appellees seized Wells when



                                           9
Cramer tackled him following the low-speed chase because Cramer had

intentionally terminated Wells’s freedom of movement. The appellees presented

several affidavits and testimony showing that they used force only in their attempts

to place the resisting Wells in handcuffs. The appellees also alleged facts showing

that Wells was an immediate threat to the safety of others and that he evaded arrest

by flight. Wells, however, filed a declaration, made under penalty of perjury, as

required by 28 U.S.C. § 1746, that the appellees immediately handcuffed him after

tackling him, and then continued to beat him as he lay on the ground. Wells never

actually averred that he was no longer resisting arrest after he was handcuffed.

However, he does aver that he was lying face down on the ground, and the police

officers were “high-fiving” each other. (R1-79, Ex. A at 4). Thus, drawing

reasonable inferences in Wells’s favor, we can infer that Wells was no longer

resisting arrest.

       Wells’s sworn pleadings and exhibits create a genuine dispute of material

fact as to whether the appellees used a reasonable amount of force when arresting

him. While the level of force used by the officers, as alleged by Wells, may have

been justified before the appellees placed him in handcuffs, that level of force may

not have been justified once Wells was handcuffed and had ceased resisting

because he may have ceased to pose a threat to the officers. Further, Wells



                                         10
provided photographs showing injuries to his face and back that could have been

sustained, as the appellees allege, in Wells being tackled, or during the beating that

Wells describes. Wells’s declaration that he was handcuffed and no longer

resisting arrest when he was beaten creates a genuine issue of material fact and,

therefore, the district court erred in granting the appellees summary judgment on

Wells’s excessive force claim.

C. Qualified Immunity

       Finally, Wells argues that the district court erred in finding that the appellees

are entitled to qualified immunity as to Wells’s excessive-force claim. When

reviewing the grant of qualified immunity at the summary judgment stage, we must

“view the evidence and all factual inferences therefrom in the light most favorable

to the non-moving party, and resolve all reasonable doubts about the facts in favor

of the non-movant.” Kingsland v. City of Miami, 

, 1226 (11th Cir.

2004). Qualified immunity completely protects government officials performing

discretionary functions from suit in their individual capacities unless their conduct

violates “‘clearly established statutory or constitutional rights of which a

reasonable person would have known.’”4 Hope v. Pelzer, 

, 739, 122


       4
         On appeal, Wells does not challenge the district court’s conclusion that the appellees
were acting in their discretionary authority when they apprehended him following a low speed
chase. He argues only that they violated clearly established law in subjecting him to excessive
force.

                                               

, 2515 (2002) (citation omitted). To be eligible for qualified immunity,

government officials must show that they were acting within their discretionary

authority. Gonzalez v. Reno, 

, 1234 (11th Cir. 2003). The Supreme

Court created a two-part analysis to determine whether a grant of qualified

immunity is appropriate. 

question is whether the alleged facts

demonstrate that the defendants violated any constitutional rights of the plaintiff.

constitutional violation is alleged, the final step of the qualified immunity

analysis is whether the right was clearly established. 

ask whether, at

the time the violation occurred, “every objectively reasonable police officer would

have realized the acts violated already clearly established federal law.” Garrett v.

Athens-Clarke County, Ga., 

, 1279 (11th Cir. 2004) (per curiam).

      A party can show that the law clearly established that particular conduct was

unconstitutional through several methods. Vinyard v.Wilson, 

, 1350

(11th Cir. 2002). First, using the “obvious clarity” approach, a plaintiff can show

that a federal constitutional provision or statute is so clear, and the conduct so bad,

that case law is not needed to establish that the conduct cannot be lawful. 

issued several decisions holding that an official’s conduct was “‘far beyond

the hazy border between excessive and acceptable force,’” and thus, facially

violated the Fourth Amendment. 

n.18 (citation omitted); see e.g.,



                                           12
Slicker v. Jackson, 

, 1233 (11th Cir. 2000) (concluding, without case

law on point, that the evidence, if credited, suggested “the officers used excessive

force in beating [the plaintiff] even though he was handcuffed and did not resist,

attempt to flee, or struggle with the officers in any way”). Second, if the conduct is

not so egregious as to facially violate a constitutional provision, we look to case

law to find a broad principle concerning such conduct, untied to particularized

facts, that clearly establishes the law applicable in the future to different facts.

. Third, a plaintiff can point to a materially similar case

that has already been decided in which the particular conduct, in similar

circumstances, was unconstitutional. 

On the facts of this case,

Smith v. Mattox, 

(11th Cir. 1997) (per curiam), is materially

similar. Smith, when confronted by a police officer conducting a drug operation,

raised a baseball bat at the officer and then dropped the bat and fled. 

When Smith was later surrounded by that officer and other police officers, he

pretended to run and then suddenly “docilely submitted to arrest.” 

was on the ground, Mattox put his knee on Smith’s back to handcuff him and

pulled Smith’s forearm such that it caused him to complain of discomfort. Smith

then heard Mattox grunt before the officer delivered a blow that broke Smith’s arm

in multiple places. We held that Mattox’s grunt and his blow to Smith’s arm,



                                            13
coupled with the severity of Smith’s injury, showed, at the summary judgment

stage, that Mattox had violated clearly established law. 

We assumed

Smith’s facts as true, and determined that (1) Smith’s lack of resistance at the time

of the blow; (2) Mattox’s grunt; (3) Smith’s sensation that he received a “blow”;

and (4) the broken arm showed that Mattox’s use of force was clearly

unconstitutional. 

      Viewing the evidence in a light most favorable to Wells, we find that the

district court erred in finding that the appellees are entitled to qualified immunity at

the summary judgment stage. Further, as we have explained, Wells produced

sufficient evidence to show the appellees violated his Fourth Amendment rights by

attesting that they severely beat him after he had been placed in handcuffs. The

appellees’ conduct, as alleged by Wells, facially violates the Fourth Amendment

with obvious clarity and violates clearly established law in view of our decision in

Smith. Therefore, the district court erred in granting the appellees summary

judgment on qualified immunity grounds.

                                 III. CONCLUSION

       Wells appeals the district court’s orders denying his motion under Federal

Rule of Civil Procedure 59(e) and granting summary judgment in favor of the

defendants in Wells’s civil rights suit against police officers of the Pinellas County



                                           14
Sheriff’s Office for excessive force under 42 U.S.C. § 1983. The district court

erred by finding that Wells’s Rule 59(e) was filed untimely. The district court also

erred in granting summary judgment to the appellees on Wells’s excessive force

claim and in finding that they are entitled to qualified immunity at this stage of the

litigation. Accordingly, we vacate the district court’s order and remand this case

for further proceedings consistent with this opinion.

VACATED AND REMANDED.




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