Filed: Jun. 30, 2010
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-15584 ELEVENTH CIRCUIT JUNE 30, 2010 Non-Argument Calendar JOHN LEY _ CLERK D. C. Docket No. 05-00767-CV-J-33-HTS ORVEL W. LLOYD, Plaintiff-Appellant, versus VAN TASSELL, Deputy, in his individual and official capacities, et al., Defendants, CLARENCE JAKE CARD, in his individual and official capacities, Defendant-Appellee. _ Appeal from the United States District Court for the Mid
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-15584 ELEVENTH CIRCUIT JUNE 30, 2010 Non-Argument Calendar JOHN LEY _ CLERK D. C. Docket No. 05-00767-CV-J-33-HTS ORVEL W. LLOYD, Plaintiff-Appellant, versus VAN TASSELL, Deputy, in his individual and official capacities, et al., Defendants, CLARENCE JAKE CARD, in his individual and official capacities, Defendant-Appellee. _ Appeal from the United States District Court for the Midd..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15584 ELEVENTH CIRCUIT
JUNE 30, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 05-00767-CV-J-33-HTS
ORVEL W. LLOYD,
Plaintiff-Appellant,
versus
VAN TASSELL, Deputy,
in his individual and official capacities,
et al.,
Defendants,
CLARENCE JAKE CARD,
in his individual and official capacities,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 30, 2010)
Before BLACK, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
After a bench trial, Plaintiff Orvel Winston Lloyd pro se appeals the district
court’s judgment in favor of Defendant Jake Card in Lloyd’s 42 U.S.C. § 1983
action arising out of Lloyd’s arrest.
I. BACKGROUND
A. Prior Appeal to this Court
During an investigation into suspected counterfeiting, law enforcement
executed a search warrant at Lloyd’s residence. Prior to the search, Defendant
Card, a deputy with the Nassau County Sheriff’s Office, conducted a background
check and learned that Lloyd had prior convictions for aggravated assault and
weapons charges. Consequently, Card advised the officers involved in the search
to use extreme caution with Lloyd. During the search, Defendant Card found
firearms on the premises.
While the search was ongoing, officers saw Lloyd’s car approaching the
house. Several officers, including Defendant Card, pursued Lloyd’s car and
eventually pulled it over, arresting Lloyd.
Lloyd’s complaint asserted a § 1983 claim of excessive force and state law
claims of battery and theft against Defendant Card. Lloyd also sued the nurse at
the Nassau County Jail, the Nassau County Sheriff, and Officer Ryan Van Tassell,
2
who was also involved in Lloyd’s arrest. After discovery, the district court granted
summary judgment to all the defendants. On appeal, this Court affirmed the grant
of summary judgment as to all defendants except Card. As to Card, this Court
concluded that the district court erred in granting summary judgment on the
excessive force claim against Defendant Card and any state law claims that arose
from the same nucleus of operative facts.1 See Lloyd v. Van Tassell, 318 F. App’x
755 (11th Cir. 2009).
B. Trial Evidence After Remand
On remand, the district court appointed pro bono counsel for Lloyd. At trial,
the parties presented widely contrasting versions of Lloyd’s arrest. Lloyd testified
that Defendant Card dragged him out of the car, slammed his head on the ground,
placed him in handcuffs and then stomped on his head. According to Lloyd, Card
broke Lloyd’s nose, which began to bleed. Lloyd averred that all the officers
present saw Card’s actions and laughed at Lloyd. Card also told Lloyd he was
lucky witnesses were present because the Sheriff had instructed Card to kill Lloyd.
Card and numerous other officers involved in Lloyd’s arrest contradicted
1
In a pre-trial order, the district court ruled that Lloyd’s state law theft claim did not arise
from the same nucleus of operative facts as his excessive force claim and would not be heard at
trial. In its final order following the bench trial, the district court noted that even “[a]ssuming
arguendo the theft claim is still before the Court, the preponderance of the evidence shows that
Defendant Card did not take money from Plaintiff and so did not commit common law theft
under Florida law . . . .” Lloyd does not challenge either ruling on appeal.
3
Lloyd’s story. According to these witnesses, Lloyd’s car fled the search scene at a
high rate of speed and, although pursued by police cars with flashing lights, did not
stop until a mile from Lloyd’s residence. Once stopped, officers drew their
firearms and, as the three occupants exited the car, Officer Van Tassell ordered
them to get on the ground. The occupants did not comply. Defendant Card
repeated the order to get on the ground. When they still did not comply and Lloyd
appeared to be looking for a way to flee, Card used a standard police maneuver
called a “lateral arm bar takedown” to force Card to the ground. This maneuver
placed Card face-down on the ground, at which point Card handcuffed Lloyd.
Card stated that he did not use more force that was necessary to accomplish
the takedown maneuver and denied striking Lloyd, stomping on Lloyd’s head or in
any way mistreating Lloyd. The other officers at the scene testified that they did
not see Card kick, hit or mistreat Lloyd during the arrest. Several of the officers
saw abrasions on Card’s face, but denied that Card’s nose was bleeding or that
Card told anyone his nose was broken.
Officer Keith Whaley photographed Lloyd at the scene after he was secured,
and recalled that Lloyd had a forehead abrasion, but was not actively bleeding.
Whaley’s photograph shows Lloyd lying face down with his hands cuffed behind
his back. A subsequent booking photo shows a small abrasion above Lloyd’s left
4
eye and that the tip of his nose is red and somewhat swollen.2 The nurse at the
Nassau County Jail testified that at intake Lloyd did not complain of a broken nose
or that he was mistreated by officers. While at the jail, Lloyd was not treated for a
broken nose, and none of the jail’s medical records indicates Lloyd had a nose
injury. The first time Lloyd complained of a broken nose was almost two years
after his arrest.
C. District Court’s Decision
Following the trial, the district court entered an order with findings of fact
and conclusions of law. The district court credited the testimony of Defendant
Card and the other officers at the scene over Plaintiff Lloyd’s testimony. The
district court found, among other things, that: (1) Card used the takedown
maneuver to put Lloyd on the ground and did not strike Lloyd during or after the
takedown, (2) as a result, Lloyd had a strawberry like abrasion on his forehead, but
was not actively bleeding and did not have blood around his nose. The district
court concluded, inter alia, that: (1) Card and the other officers justifiably feared
that Lloyd was armed and reasonably believed that Card was a flight risk; (2) Card
used the necessary force to put Lloyd on the ground and afterwards did not use any
force except to put Lloyd in handcuffs; (3) Card’s decision to use the takedown
2
Lloyd also had a black eye, but it is undisputed that this was a pre-existing injury.
5
maneuver was reasonable under the circumstances; (4) the amount of force used
was minimal; and (5) Lloyd’s injuries were not significant. Thus, the district court
determined that Card did not use excessive force when he restrained Lloyd and was
entitled to qualified immunity. The district court also determined that Card did not
commit common law battery against Lloyd. The district court entered judgment in
favor of Card. Lloyd, proceeding pro se, appealed.
II. DISCUSSION
A. Jury Trial Request
Lloyd filed his § 1983 complaint on August 12, 2005. On September 6,
2005, the defendants filed and served responsive pleadings, and discovery began.
Over six months later, on March 29, 2006, Lloyd filed a motion for a jury trial. On
May 23, 2006, a magistrate judge denied the jury request as untimely. The
magistrate judge’s order cited Federal Rule of Civil Procedure 38, which required a
party to demand a jury trial within ten days of service of the last pleading to
preserve the right to a civil jury trial. See Fed. R. Civ. P. 38 (b), (d).3
In his first appeal to this Court, Lloyd did not challenge the magistrate
judge’s denial of his request for a jury trial. After remand and the appointment of
counsel, Lloyd filed a motion to reconsider the earlier order denying his jury
3
Rule 38 has since been amended to allow fourteen days instead of ten.
6
request. The district court denied the motion to reconsider.
In this second appeal, Lloyd argues that the magistrate judge’s denial of his
request for a jury trial was an abuse of discretion. We are precluded by the law of
the case doctrine from addressing the magistrate judge’s May 23, 2006 order
denying Lloyd’s motion for a jury trial. “Under the law of the case doctrine, a
legal decision made at one stage of the litigation, unchallenged in a subsequent
appeal when the opportunity existed, becomes the law of the case for future stages
of the same litigation, and the parties are deemed to have waived the right to
challenge that decision at a later time.” United States v. Escobar-Urrego, 110 F.3d
1556, 1560 (11th Cir. 1997) (quotation marks omitted). Lloyd had the opportunity
to appeal the magistrate judge’s May 23, 2006 order in his first appeal, but did not.
Thus, the denial of Lloyd’s motion for a jury trial is the law of the case.
Construing Lloyd’s pro se brief liberally to argue that the district court
should have granted his post-remand motion for reconsideration of the magistrate
judge’s May 23, 2006 order, we find no abuse of discretion.4 The law of the case
doctrine prevented Lloyd from litigating whether his jury demand was timely or
whether his untimeliness should have been excused. Furthermore, a motion for
reconsideration cannot be used to “relitigate old matters,” including those
4
We review for abuse of discretion a district court’s denial of a motion to reconsider.
Corwin v. Walt Disney Co., 475 F.3d 1239, 1254 (11th Cir. 2007).
7
arguments that were “previously available, but not pressed.” Wilchombe v.
TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009) (quotation marks omitted).
Accordingly, the district court properly denied Lloyd’s motion for reconsideration.
B. Judgment in Favor of Card
Lloyd argues that the district court erred by finding in favor of Card,
contending that Card and the other officers gave false testimony at trial about the
circumstances of his arrest. After review, we find no reversible error in the district
court’s findings of fact or conclusions of law.5
The district court found that Defendant Card did not strike Lloyd during or
after the takedown procedure and that Card’s actions caused abrasions to Lloyd’s
face, but did not break his nose. The district court’s findings are supported by the
testimony of numerous officers, including Card, Lloyd’s medical records and
photographs of Lloyd taken at the scene of his arrest and after he was booked into
the jail. The district court specifically credited the testimony of Card and the other
officers over Lloyd’s conflicting testimony. Lloyd has given us no reason to
disturb this credibility determination. See Anderson v. City of Bessemer City, 470
5
After a bench trial, we review a district court’s conclusions of law de novo and the
court’s factual findings for clear error. Renteria-Marin v. Ag-Mart Produce, Inc., 537 F.3d 1321,
1324 (11th Cir. 2008). “A factual finding is clearly erroneous when although there is evidence
to support it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” Morrissette-Brown v. Mobile Infirmary Med.
Ctr.,
506 F.3d 1317, 1319 (11th Cir. 2007) (quotation marks omitted).
8
U.S. 564, 575,
105 S. Ct. 1504, 1512 (1985) (explaining that “when a trial judge’s
finding is based on his decision to credit the testimony of one of two or more
witnesses, each of whom has told a coherent and facially plausible story that is not
contradicted by extrinsic evidence, that finding if not internally inconsistent, can
virtually never be clear error”). Thus, Lloyd has shown no clear error in the
district court’s factual findings.
We likewise find no error in the district court’s legal conclusions. Given
that: (1) the officers had reason to believe Lloyd might be armed; (2) Lloyd failed
to comply with officers’ prior requests to get on the ground; and (3) Lloyd
appeared to be about to flee, we agree with the district court that it was
constitutionally reasonable for Defendant Card to use a routine “arm bar”
takedown procedure to put Lloyd on the ground in a way that ensured Lloyd could
not access any weapons he might have before he was handcuffed. Under the
circumstances presented, the force was necessary to safely secure Lloyd and,
although it resulted in abrasions to Lloyd’s forehead and nose, did not constitute
excessive force under the Fourth Amendment. See Graham v. Connor, 490 U.S.
386, 397,
109 S. Ct. 1865, 1872 (1989) (providing that the question is “whether the
officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances
confronting them”). Nor did it constitute an actionable battery under Florida law.
9
See Fla. Stat. § 776.05(1); City of Miami v. Sanders, 672 So. 2d 46, 47 (Fla. 3d
Dist. Ct. App. 1996). Consequently, the district court correctly entered judgment
in favor of Defendant Card on Lloyd’s claims of excessive force and battery.6
AFFIRMED.
6
Lloyd argues that his court-appointed pro bono lawyers’ poor performance denied him
access to the courts. However, “[a] party . . . does not have any right to a new trial in a civil suit
because of inadequate counsel . . . .” Mekdeci ex rel. Mekdeci v. Merrell Nat’l Labs., 711 F.2d
1510, 1523 (11th Cir. 1983) (quotation marks omitted, emphasis added). In any event, nothing
in the record indicates that Lloyd was denied access to the courts or deprived of a fair trial. To
the contrary, the record suggests that Lloyd’s attorneys vigorously represented him.
10
