Case: 16-11660     Date Filed: 09/05/2017   Page: 1 of 11


                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 16-11660
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 4:13-cv-00240-HLM



VICTOR LAMAR CLEMENT,

                                                  Plaintiff - Appellant,

versus

BRYAN MCCARLEY,
Jointly and Severally, Individual and Official
Capacities, et al.,

                                                   Defendants,

CARL LIVELY, Jointly and Severally, Individually
and Official Capacities,

                                                  Defendant - Appellee.

                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________

                                (September 5, 2017)
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Before TJOFLAT, WILLIAM PRYOR, and JORDAN, Circuit Judges.

PER CURIAM:

      Victor Lamar Clement, a state prisoner proceeding pro se, appeals the

district court’s grant of summary judgment in favor of Floyd County Police

Department Officer Carl Lively. He argues that the district court improperly

deemed Officer Lively’s facts admitted and that genuine issues of fact existed on

his 42 U.S.C. § 1983 claims for false arrest and excessive force. He also appeals

the magistrate judge’s denial of his motion for subpoenas. Upon review of the

record and the parties’ briefs, we affirm.

                                             I

      Mr. Clement alleged in his § 1983 complaint that Officer Bryan McCarley,

who had been previously harassing him, contacted Officer Lively on November 3,

2011, and issued a be-on-the-look-out (BOLO) for a male driving a black Mustang.

Mr. Clement later passed Officer Lively’s car along the highway and, when he

approached an intersection, stopped to allow a tractor-trailer to turn. He then saw a

patrol car with its lights activated, so he drove through the intersection and pulled

over to the side of the road. Mr. Clement claimed that the patrol car rammed into

the passenger side of his car, and when he backed up to get out of the way, he lost

control of his car and spun around. Mr. Clement further alleged that Officer Lively

falsely stated in a warrant, a police report, an affidavit, and at a bond hearing, that


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Mr. Clement had rammed into the police car head-on, so his arrest was false and

illegal.

       On October 4, 2013, Mr. Clement filed this action asserting a number of

claims against the Floyd County Police Department and several of its officers,

including Officers McCarley and Lively, in their individual and official capacities.

The district court adopted the magistrate judge’s report and recommendation and

dismissed all of Mr. Clement’s claims except his false arrest and excessive use of

force claims against Officer Lively in his individual capacity. The magistrate judge

subsequently permitted Mr. Clement to amend his complaint, but indicated that his

action would proceed only against Officer Lively in his individual capacity on the

excessive force and false arrest claims, as well as a state tort claim for physical

injury.

       In April of 2015, the magistrate judge granted Mr. Clement’s motion to

extend the discovery period until June 17, 2015. On June 11, 2015, Mr. Clement

moved for the court to issue ten subpoenas duces tecum on various non-parties.

The magistrate judge denied his motion, noting that Mr. Clement did not file this

request until nearly six months after discovery began and only six days before it

was scheduled to end. Nor did Mr. Clement request another extension of the

discovery period or explain how he could have completed discovery associated

with the requested subpoenas within the existing period.


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      Officer Lively moved for summary judgment and attached several

documents to his motion, including his affidavit. In the affidavit, Officer Lively

stated that he received a BOLO for a black Mustang, and that he saw Mr. Clement

drive past him in a black Mustang. He decided to pursue Mr. Clement, accelerating

to a speed of 100 miles per hour. Mr. Clement turned left at a red light in front of a

semi-trailer and was facing in the wrong direction on the road. When Officer

Lively attempted to turn onto the road, Mr. Clement hit the front end of the patrol

car on the driver’s side of his car, then backed up. Officer Lively positioned the

patrol car to prevent Mr. Clement from leaving, and when Mr. Clement continued

moving, he struck the passenger side of the Mustang. Mr. Clement drove away at a

speed of 101 miles per hour, and due to the driving conditions and the way

Mr. Clement was driving, Officer Lively discontinued his pursuit. Mr. Clement

was later arrested and pled guilty to aggravated assault by striking the patrol car

with his vehicle, obstruction of an officer, and attempting to elude a police officer

by fleeing in traffic conditions that placed the public at risk of serious injury while

speeding.

      The magistrate judge’s report recommended that Officer Lively’s motion be

granted. The magistrate judge noted that Mr. Clement’s various statements of facts

did not comply with Local Rule 56.1B, concluded that Officer Lively’s facts were

supported by the record, and deemed those facts admitted. The district court


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adopted the report and recommendation, overruled Mr. Clement’s objections, and

granted summary judgment in favor of Officer Lively. The district court

incorporated the facts as stated in the final report and recommendation, and

determined that Mr. Clement’s excessive force and false arrest claims were barred

by Heck v. Humphrey, 

(1994), and that, alternatively, Officer Lively

was entitled to qualified immunity. This appeal followed.

                                          II

      Mr. Clement argues that the magistrate judge abused his discretion in

denying his motion for subpoenas duces tecum filed at the end of the discovery

period. We review a district court’s discovery decisions for an abuse of discretion,

see Burger King Corp. v. Weaver, 

, 1315 (11th Cir. 1999),

recognizing that the district court is allowed “a range of choice” in ruling on

discovery issues. See Holloman v. Mail-Well Corp., 

, 837 (11th Cir.

2006). We will not reverse a district court’s decision unless it reflects a clear error

of judgment. See 

did not object to the magistrate judge’s nondispositive order, so

he waived his right to challenge it on appeal. See Smith v. Sch. Bd. of Orange Cty.,

, 1365 (11th Cir. 2007) (“We have concluded that, where a party

fails to timely challenge a magistrate’s nondispositive order before the district

court, the party waived his right to appeal those orders in this Court.”). See also


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Fed. R. Civ. P. 72(a) (“A party may not assign as error a defect in [a

nondispositive] order not timely objected to.”).

      Even if we were to address the merits of his argument, Mr. Clement did not

show good cause for failing to request the subpoenas until six days before the end

of the extended discovery period. It was therefore within the magistrate judge’s

reasonable range of choices to deny Mr. Clement’s motion for subpoenas.

                                         III

      Mr. Clement also argues that the district court abused its discretion in

deeming Officer Lively’s facts admitted in ruling on the summary judgment

motion, particularly in light of his status as a pro se litigant. We review a district

court’s application of its local rules for an abuse of discretion, finding such abuse

only when the party demonstrates that the district court made a clear error of

judgment. See Mann v. Taser Int’l, Inc., 

, 1302 (11th Cir. 2009).

“Pro se pleadings are held to a less stringent standard than pleadings by attorneys

and will, therefore, be liberally construed.” See Tannenbaum v. United States, 

, 1263 (11th Cir. 1998). But “we have never suggested that procedural

rules in ordinary civil litigation should be interpreted so as to excuse mistakes by

those who proceed without counsel.” McNeil v. United States, 

, 113

(1993).




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      Local Rule 56.1B of the Northern District of Georgia requires a non-moving

party’s response to a summary judgment motion to “contain individually

numbered, concise, nonargumentative responses corresponding to each of the

movant’s numbered undisputed material facts.” N.D. Ga. Civ. R. 56.1B(2)(a)(1). It

provides that a court “will deem each of the movant’s fact as admitted unless the

respondent: (i) directly refutes the movant’s facts with concise responses supported

by specific citations to evidence . . . ; (ii) states a valid objection to the

admissibility of the movant’s fact; or (iii) points out that the movant’s citation does

not support the movant’s fact or that [it] is not material or otherwise has failed to

comply with LR 56.1[.]” 

Lively’s statement of undisputed material facts complied with

Local Rule 56.1B, and the magistrate judge determined that the record supported

his statement of facts. In contrast, Mr. Clement’s statements of facts did not

comply with Local Rule 56.1B because, although he individually numbered his

statements, those statements did not correspond to those in Officer Lively’s

statement of facts, had almost no citations to record evidence, were not framed as

responses to Officer Lively’s statement of facts, and simply repeated his version of

events in a conclusory and argumentative manner. Local Rule 56.1B is an ordinary

procedural rule, and Mr. Clement was required to comply with it. Given

Mr. Clement’s failure to comply, the district did not make a clear error of judgment


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in adopting the magistrate judge’s decision to deem Officer Lively’s properly

supported statement of facts admitted.

                                         IV

      Mr. Clement asserts that the district court improperly granted summary

judgment in favor of Officer Lively because his claims were not barred under Heck

and Officer Lively was not entitled to qualified immunity.

      We review the grant of summary judgment de novo, applying the same legal

standard used by the district court and drawing all factual inferences in the light

most favorable to the nonmoving party. See Johnson v. Bd. of Regents, 

, 1242–43 (11th Cir. 2001). Summary judgment is appropriate when “the

pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits . . . show that there is no genuine issue as to any material fact

and that the nonmoving party is entitled to judgment as a matter of law.” Celotex

Corp. v. Catrett, 

, 322 (1986). In order to overcome a motion for

summary judgment, the nonmoving party must present more than a mere scintilla

of evidence supporting his position, and must make a sufficient showing that a jury

could reasonably find in his favor. See Brooks v. Cty. Comm’n of Jefferson Cty.,

Ala., 

, 1162 (11th Cir. 2006).

      Under Heck, if a judgment in favor of a plaintiff on a § 1983 claim “would

necessarily imply the invalidity of his conviction or sentence[,] . . . the complaint


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must be dismissed unless the plaintiff can demonstrate that the conviction or

sentence has already been 

. The district court properly

determined that Mr. Clement’s false arrest claim was barred by Heck. His claim

would clearly imply the invalidity of his convictions because it is based on the

assertion that there was no probable cause to believe he had committed the offense

for which he was convicted.

      Mr. Clement’s excessive force claim, however, is not barred by Heck.

Taking Officer Lively’s version of the events as true under Local Rule 56.1B,

Officer Lively did not hit Mr. Clement’s car until after Mr. Clement hit the patrol

car. Based on these facts, success on the excessive force claim would not

necessarily imply the validity of Mr. Clement’s convictions. See Dyer v. Lee, 

, 882–83 (11th Cir. 2007) (holding that a § 1983 claim for excessive force

was not barred by Heck when the alleged force did not occur until after the plaintiff

kicked one of the officers, the action that had formed the basis of her conviction

for battery on a law enforcement officer).

      Although Mr. Clement’s excessive force claim is not barred by Heck, the

district court properly found that Officer Lively was entitled to qualified immunity

on that claim. “Qualified immunity shields government officials from liability for

civil damages for torts committed while performing discretionary duties unless

their conduct violates a clearly established statutory or constitutional right.”


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Hadley v. Gutierrez, 

, 1329 (11th Cir. 2008). We analyze claims of

excessive force under the Fourth Amendment’s objective reasonableness standard.

See Edwards v. Shanley, 

, 1295 (11th Cir. 2012). See also Sharp v.

Fisher, 

, 1183 (11th Cir. 2008) (recognizing that terminating a car

chase by striking a fleeing vehicle constitutes a seizure). We ask “whether the

officer’s conduct is objectively reasonable in light of the facts confronting the

officer” and judge the reasonableness of the use of force “from the perspective of a

reasonable officer on the scene, rather than with the 20/20 vision of hindsight.”

(internal quotation marks omitted). In determining

whether the use of force was reasonable, we consider “(1) the severity of the crime

at issue; (2) whether the suspect poses an immediate threat to the safety of the

officers or others; and (3) whether the suspect is actively resisting arrest or

attempting to evade arrest by flight.” 

marks and citation

omitted).

      We have held that a police officer’s use of force by striking a suspect’s car

with a patrol car was objectively reasonable where the officer knew the suspect

was fleeing from law enforcement officials at a high rate of speed; the suspect

failed to respond to blue lights and sirens and gave no indication of stopping the

pursuit or slowing down; the officers had been chasing the respondent for an




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extended period of time; there were several civilian vehicles on the road during the

pursuit; and the suspect drove erratically. See 

.

      Here, Officer Lively acted within his discretionary authority as a police

officer in pursuing Mr. Clement and hitting his car with the patrol car because

Mr. Clement was suspected of criminal activity and posed a threat to the public.

Indeed, Mr. Clement pled guilty to aggravated assault for striking the patrol car

with his vehicle, obstruction of an officer, and attempting to elude an officer.

Mr. Clement failed to show that Officer Lively was not entitled to qualified

immunity because he has not demonstrated that Officer Lively’s actions were

clearly unreasonable. Based on Officer Lively’s version of the events, Mr. Clement

was attempting to flee and had been driving at a high rate of speed, was driving

erratically on a public road, and had already hit Officer Lively’s patrol car and

continued to flee. Accordingly, Officer Lively is entitled to qualified immunity as

to Mr. Clement’s excessive force claim.

                                          V

      For the reasons stated above, the district court’s order is affirmed.

      AFFIRMED.




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