483 F.3d 1231 (11th Cir. 2007), 06-11826, McClish v. Nugent

Docket Nº:06-11826.
Citation:483 F.3d 1231
Party Name:Douglas McCLISH, Edmund Holmberg, Plaintiffs-Appellants, v. Richard B. NUGENT, Sheriff of Hernando County, in his official capacity, Shawn Terry, Deputy, individually, et al., Defendants-Appellees.
Case Date:April 11, 2007
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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483 F.3d 1231 (11th Cir. 2007)

Douglas McCLISH, Edmund Holmberg, Plaintiffs-Appellants,


Richard B. NUGENT, Sheriff of Hernando County, in his official capacity, Shawn Terry, Deputy, individually, et al., Defendants-Appellees.

No. 06-11826.

United States Court of Appeals, Eleventh Circuit.

April 11, 2007

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[Copyrighted Material Omitted]

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Richard Brian Rosenthal, The Law Office of Richard B. Rosenthal, P.A., Miami, FL, Nell Rose, Bernstein, Chackman & Liss, Hollywood, FL, for Plaintiffs-Appellants.

John M. Green, Jr., Green & Falvey, P.A., Ocala, FL, Loren E. Levy, The Levy Law Firm, Tallahassee, FL, for Plaintiffs-Appellees.

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

Before ANDERSON and MARCUS, Circuit Judges, and ALTONAGA, [*] District Judge.

MARCUS, Circuit Judge:

In this civil rights case, Appellants Edmund Holmberg ("Holmberg") and Douglas McClish ("McClish") appeal from the district court's entry of final summary judgment for Appellees Deputy Shawn Terry, Deputy Christopher Calderone, and Sheriff Richard B. Nugent, all of the Hernando County, Florida Sheriff's Office. After thorough review, we affirm the district court's determination that Deputy Terry was entitled to qualified immunity for effecting a warrantless arrest of McClish within his home. However, because Holmberg was never convicted of a crime, we reverse the district court's judgment that his § 1983 wrongful arrest claim was barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Finally, we reverse the district court's dismissal of Appellants' state law claims pursuant to 28 U.S.C. § 1367(c)(3) and remand those claims as well.


Taking the evidence in the light most favorable to the appellants, the essential facts and procedural history are these. Edmund Holmberg and Douglas McClish lived in a trailer home in Brooksville, Florida. At approximately 4:00 p.m. on October 13, 2001, Deputies Shawn Terry and Clifford Groves of the Hernando County Sheriff's Office responded to a complaint from McClish and Holmberg's neighbors, the Padzurs, who said that Holmberg had been screaming profanities at them across the line separating the two properties. The complaint did not mention McClish, who was not home when the deputies first arrived. The deputies met with the Padzurs and then, stepping over a downed fence separating the two properties, informed Holmberg and McClish of the complaint. The underlying conflict between the neighbors seems to have arisen over a property dispute. McClish believed that the neighbors had stolen part of his property, and a number of the incidents involving threats or profanity shouted across the property line seem to have occurred when Michael Padzur was clearing brush from the disputed area.

Holmberg met the deputies partway between the property line and his home, and McClish arrived home shortly thereafter. McClish reacted angrily to the presence of the deputies on his property. According to Terry, McClish said, "[T]he sheriff's office is a bunch of Nazis .... This is America. A man can have rights on his own property." Terry Crim. Depo. 19. After a conversation that Deputy Groves concluded "wasn't heading anywhere," the deputies crossed back over the property line to the Padzur residence. 1

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The Padzurs described for the deputies a litany of abuse allegedly suffered at the hands of Holmberg and McClish, including threats to kill members of the family, epithets ("Fucking white trash"), and firing guns into the air along the property line. The Padzurs complained that the Sheriff's Office had failed to respond to multiple requests for help and that they feared for their safety. Statements taken from various members of the Padzur family included remarks such as "Ed [Holmberg] and Doug [McClish] are getting more violent in their actions and words," "Doug said he wanted to kill us," and "I also think that [Doug] stalks us because at night he drives by are [sic] house at night real slow on his golf cart and stares ...." McClish denied making any threats towards the family and denied that he or Holmberg ever fired a weapon to harass the Padzurs.

As the deputies spoke with the Padzurs outside the Padzur home, McClish intermittently observed the interaction from his home. At some point during the interview, McClish got in his car, drove past the Padzur property, and yelled something out the window of his car. Deputy Terry claimed that McClish shouted, "I'm going to kill you, bitch. You'll see, bitch." Terry Aff. ¶ 13. McClish flatly denied this. Rather, McClish said that he yelled, "If they're telling you some more lies about us, forget it. She's a liar," McClish Aff. ¶ 7, and that this comment was directed at the officers, not at Mrs. Padzur, McClish Depo. 109. Deputy Groves testified only that McClish "yelled something from his vehicle," and said that he did not observe McClish commit any crimes while the officers were present. Groves Depo. 15.

Upon returning to the Sheriff's Office, Deputy Terry reviewed the records of previous calls to the Sheriff's Office and concluded--on the basis of his conversation with the neighbors and his personal observations of McClish's behavior--that he had probable cause to arrest McClish 2 for the crime of aggravated stalking. 3 Although Terry decided to arrest McClish before returning to McClish's home, he did not attempt to obtain an arrest warrant from a magistrate during the six or seven hours separating the two visits, 4 and he conceded that there were no exigent circumstances

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to justify a warrantless entry into McClish's home. 5

Deputy Terry and Deputy Calderone returned to the area at approximately 11:30 p.m. that same day to arrest McClish. They were accompanied by Deputy Martinez, a K-9 handler, and his dog, Magnum. Terry met briefly with the Padzurs to inform them of his intention to arrest McClish before he proceeded to the McClish/Holmberg property. Vehicular access to the McClish/Holmberg home is limited by an electronic gate posted with "No Trespassing" signs. McClish and Holmberg had given their neighbor Lanny Baum a "clicker" for the gate, which Baum was permitted to use in order to make periodic deliveries of fill dirt onto the Holmberg/McClish property. According to McClish, Baum had express instructions never to give the clicker to anyone else. On the night of the arrest, Baum either opened the gate for the deputies or loaned the device to Deputy Terry. Shortly before midnight, the deputies drove through the gate to the McClish/Holmberg home. Deputies Terry and Calderone climbed several steps leading to the screened-in porch at the front of the trailer. Deputy Martinez, the K-9 officer, hung back with the dog. Terry and Calderone entered the screened porch through a sliding screen door 6 and proceeded to the front door of the home.

Deputy Terry knocked on the door to the trailer, and at this point the accounts diverge sharply. As the district court characterized the deputies' version of McClish's arrest:

Deputy Terry and Deputy Calderone went to the McClish and Holmberg residence to effectuate the arrest of McClish .... Deputy Terry ... states that he walked onto the front porch and knocked on the front door. McClish opened the door and asked who it was, and Deputy Terry told him that it was the Sheriff's Office. McClish came out onto the porch and Deputy Terry then placed him under arrest.

Dist. Ct. Order at 5 (emphasis added, citations omitted).

McClish, in contrast, said that he had just gotten out of the shower when he heard a dog barking followed by a knock at the door. He put on a bathrobe, went to the door, and opened it. 7 McClish averred that Deputy Terry was standing on the porch, directly in front of the open door, 8 and that Terry then reached into

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the house, grabbed him, and forcibly pulled him out onto the porch. Both Holmberg and McClish unambiguously stated that McClish had been standing completely inside the home at the time.

McClish recounted that after Deputy Terry pulled him out of the trailer, the deputy pushed him down onto a table on the porch and yanked his hands behind his back "quite forcibly." According to Terry, McClish requested and was denied the opportunity to dress. Terry stated that Holmberg's exit from the home during McClish's arrest prevented him from granting McClish's request to dress, and that he told McClish the county jail would provide clothing. McClish said that Terry then spun him around so that the two men were face-to-face and said, "Remember me?"

After McClish had been handcuffed and was being taken away, Holmberg came outside the home and was subsequently arrested for resisting an officer without violence. Again, the accounts differ. Holmberg claimed that he came out of the home as the deputies were leading McClish to the car and asked McClish what he should do. McClish told him to call a neighbor, Virginia Knight, for help in finding a lawyer. Holmberg added that he had turned around to return to the home and make the call when Deputy Terry told Deputy Calderone to arrest him. Terry and Calderone, by contrast, claim that Holmberg rushed out of the house yelling and screaming, and that he approached them with clenched fists. Deputy Calderone claims that he arrested Holmberg for resisting an officer without violence only after Holmberg refused several requests to walk away.

The two men were then taken to the county jail. 9 Holmberg said that he was sprayed with mace on two occasions, resulting in lasting damage to his eyes, and that he was taunted and baited with a camcorder. McClish recounted that he contracted bronchitis from sitting for hours in a cold cell without any clothes. McClish also claimed, at a deposition taken some four years after the arrest, that he still had scars from injuries suffered during the arrest. Finally,...

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