694 Fed.Appx. 716 (11th Cir. 2017), 16-11659, Reed v. Clough

Docket Nº:16-11659
Citation:694 Fed.Appx. 716
Opinion Judge:PER CURIAM:
Party Name:CHRISTOPHER REED, Plaintiff - Appellant, v. PHILLIP CLOUGH, MICHAEL MORESCHI, Defendants - Appellees
Attorney:For Christopher Reed, Plaintiff - Appellant: Carlus Haynes, Bradley Laurent, Haynes & Laurent, Orlando, FL. For PHILLIP CLOUGH, Officer, Defendant - Appellee: Austin Moore, City of Orlando, Orlando, FL.
Judge Panel:Before HULL, WILSON and JILL PRYOR, Circuit Judges.
Case Date:June 02, 2017
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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694 Fed.Appx. 716 (11th Cir. 2017)

CHRISTOPHER REED, Plaintiff - Appellant,



No. 16-11659

United States Court of Appeals, Eleventh Circuit

June 2, 2017

Editorial Note:

DO NOT PUBLISH. (See Federal Rule of Appellate Procedure Rule 32.1)

Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 6:14-cv-00217-GKS-GJK.

For Christopher Reed, Plaintiff - Appellant: Carlus Haynes, Bradley Laurent, Haynes & Laurent, Orlando, FL.

For PHILLIP CLOUGH, Officer, Defendant - Appellee: Austin Moore, City of Orlando, Orlando, FL.

Before HULL, WILSON and JILL PRYOR, Circuit Judges.


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Christopher Reed was attacked by a group of assailants outside a nightclub in Orlando, Florida. He fled to his vehicle in the parking lot across the street, but the assailants surrounded him. Attempting to get away, Reed struck some of them with his vehicle. Seeing this, Officer Phillip Clough fired two shots at the vehicle, but Reed neither heard nor saw the shots. Thereafter, Reed was pulled over by the police and eventually was arrested by Detective Michael Moreschi. Reed brought claims under 42 U.S.C. § 1983 and Florida law based on the arrest and shooting.1

The district court dismissed all of Reed's claims against Moreschi and some of his claims against Clough. Subsequently, the court granted Clough summary judgment on Reed's remaining claims. Reed now appeals the court's dismissal of his federal malicious prosecution claim against Moreschi and its grant of summary judgment on his excessive force claim against Clough. After careful consideration, we affirm.


A. Complaint and Motion to Dismiss

In his complaint, Reed recounted a harrowing ordeal he suffered in the early hours of New Year's Day 2010. Reed was attacked by a group of inebriated assailants outside Club Limelight in Orlando, Florida. Prior to the attack, the assailants had been kicked out of Club Limelight because they became heavily intoxicated

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and started fights inside the club. The assailants had also attacked a homeless man in front of the club before setting their sights on Reed. In both cases, the attack was unprovoked. Reed tried to escape the attack by fleeing to his vehicle, which was parked across the street. But while he attempted to enter his vehicle, the assailants continued to punch and kick him. Eventually Reed was able to get into and start his vehicle. As he drove out of the parking lot, Reed struck some of the assailants with his vehicle. Clough then fired several rounds at Reed's vehicle. Two of Clough's bullets went through Reed's windshield, shattering the glass and injuring him. Sometime thereafter, Moreschi arrested Reed. Reed alleged that the arrest was unlawful because he was not the attacker and was trying to flee.

Reed attached to his complaint as an exhibit a deposition of Bruce Hicks, an independent witness to the events described above. Hicks broke up the fight between the assailants and the homeless man and then witnessed the assailants attack Reed for no reason. Hicks flagged down Clough in the street and reported that a group of men had been beating up a homeless man and were now in the parking lot beating up another man. Hicks watched the police officer enter the parking lot and saw Reed run to his vehicle. Then, he observed Reed start the car, drive over a curb and bushes, and hit two individuals. Finally, he reported that when Reed saw the police officer, he drove out of the parking lot, and the officer fired two shots at Reed.

Moreschi's charging affidavit, which Reed also attached to his complaint as an exhibit, describes the investigation he undertook before arresting Reed. Moreschi was called to the scene of a police shooting where four people had been struck by a vehicle. First, he spoke with Hicks, who told him that two fights had broken out in the parking lot across the street. Hicks described that Reed got into his vehicle and began driving, struck several people with the vehicle, turned around, and struck one of them again. Next, Moreschi interviewed Alexandra Bilbao, whose boyfriend Richard Torres was one of the people Reed struck. Bilbao admitted that Torres's friends attacked Reed for no reason but claimed that Torres did not participate and tried to break up the fight. Reed then drove into Torres and the others. What's more, Reed turned his vehicle around and ran over Torres a second time as he lay on the ground. Moreschi also spoke to the assailants (excluding Torres), who eventually admitted that the fight took place but either denied being involved or blamed the fight on Reed. And Moreschi spoke with Reed, who had an abrasion on his forehead and reported lung and kidney failure. Finally, Moreschi described the parking lot itself, which would have allowed Reed to drive straight and exit without turning around. Moreschi arrested Reed on four counts of attempted murder.

In his complaint, Reed claimed that he had suffered and would continue to suffer physical, emotional, mental, and financial damages as a result of his arrest. He asserted eight federal and state causes of action against Clough and Moreschi. Count I was a claim against Moreschi for malicious prosecution under 42 U.S.C. § 1983. Count II was a claim against Clough for excessive force based on his alleged violation of Reed's Fourth and Fourteenth Amendment rights, also under § 1983. Count III was a claim for battery against Clough under § 1983. Counts IV and V were Florida law claims against Moreschi for false arrest and malicious prosecution, respectively. Count VI was a state law battery claim against Clough. Finally, counts IX and X were state law claims against Moreschi and Clough, respectively,

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for intentional infliction of emotional distress.2

The officers asserted qualified immunity and moved to dismiss Reed's claims against them for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). The district court granted their motion in part, dismissing all claims against Moreschi (counts I, IV, V, and IX) and both battery claims against Clough (counts III and VI). But the court allowed counts II and X--Reed's claims against Clough for excessive force and intentional infliction of emotional distress, respectively--to proceed.

B. Summary Judgment

The parties conducted discovery. Most of the evidence cohered with the facts laid out above, so we highlight here only the statements of two particularly important witnesses: Clough and Reed himself. Hicks's deposition was also significant at the summary judgment stage.

In a statement to fellow police officers a week after the incident, Clough recounted his version of events. He reported that he was driving down Orange Avenue when he was flagged down by someone. That person told him that there was a fight going on in a nearby parking lot. Clough entered the parking lot and several more people informed him that a group of people was beating a guy up. Then, he saw a vehicle drive into three or four of the people standing around in the parking lot. The vehicle disappeared from view for a moment, came back around, and then hit one of the previous victims who was lying on the ground; the vehicle began to drag him. Clough identified himself as a police officer and yelled for the driver to stop, but the driver did not stop. Clough then ran alongside the vehicle and shot twice, but the vehicle drove out of the parking lot and down Orange Street.

In Reed's deposition he testified that he had some trouble exiting the parking lot as he was trying to escape because it had barricades, so he had to reverse in order to go out a different exit. He admitted that he probably hit two or three of his attackers with his car as he exited the lot. And he acknowledged that as far as he knew he hit one of the attackers twice.3 Reed did not notice Clough, hear him say anything, or realize that Clough shot at him. He headed for 7-Eleven, hoping to talk to some police officers and let them know what had happened. But before he got there, he noticed the police behind him and pulled over. A police officer came up to Reed's window and smashed it open with his baton, showering glass onto Reed's face. Reed was thrown to the ground and detained. Reed claims that because of damage to his ears from the attack, he was unable to hear anything the officers said to him.


We review the district court's dismissal of Reed's claims de novo. Saunders v. Duke, 766 F.3d 1262, 1266 (11th Cir. 2014). We accept the well-pleaded factual allegations in the complaint as true and view them in the light most favorable to Reed. Id.; Chaparro v. Carnival Corp., 693 F.3d 1333, 1335 (11th Cir. 2012). To survive a motion to dismiss, a complaint must " state a claim to relief that is plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929

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(2007). " A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Thus, a plaintiff cannot rely on " labels and conclusion, and a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555.

We review the district court's grant of summary judgment to Clough de novo, applying the same legal standards used by the district court. Kingsland v. City of Miami, 382 F.3d 1220, 1225 (11th Cir. 2004). We view the evidence and all reasonable inferences therefrom in the light most favorable to Reed and resolve all reasonable doubts...

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