Gomez v. United States, 021115 FED11, 14-10031

Docket Nº:14-10031
Party Name:WALTER GOMEZ, a Florida Resident, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, OFFICER JOHN DOE, in his individual and official capacity, Defendants-Appellees.
Judge Panel:Before HULL and JULIE CARNES, Circuit Judges, and ROTHSTEIN, District Judge.
Case Date:February 11, 2015
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

WALTER GOMEZ, a Florida Resident, Plaintiff-Appellant,


UNITED STATES OF AMERICA, OFFICER JOHN DOE, in his individual and official capacity, Defendants-Appellees.

No. 14-10031

United States Court of Appeals, Eleventh Circuit

February 11, 2015


Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:13-cv-21126-KMM

Before HULL and JULIE CARNES, Circuit Judges, and ROTHSTEIN, [*] District Judge.


Plaintiff-appellant Walter Gomez appeals the district court's dismissal of his civil rights complaint against defendants-appellees Officer John Doe and the United States, filed pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Federal Tort Claims Act (FTCA). The district court dismissed, pursuant to Federal Rule of Civil Procedure 12(b)(6), Gomez's false arrest and excessive force claims against Officer Doe, and Gomez's false arrest and battery claims against the United States.1 After a careful review of the record and the briefs, and with the benefit of oral argument, we affirm.


On April 27, 2010, approximately four United States Immigration and Customs Enforcement officers arrived at plaintiff Gomez's residence in Homestead, Florida. The officers were executing an arrest warrant for Rene Rodriguez, Gomez's father. Gomez, who was then 17 years old, and his mother moved outside and stood on the front porch of the residence when the officers arrived. The officers asked if Gomez was a United States citizen and requested identification. Gomez responded that he was a citizen and produced his driver's license. The plaintiff and his mother stayed outside on their porch.

At this time, two women from the Everglades Housing Group then arrived by car at the scene. It was agreed that they would take Gomez away from the scene and to their office.

As Gomez and the women moved toward the car in order to leave the premises, Officer Doe3 and another officer confronted Gomez's mother. Officer Doe yelled at Gomez's mother, using obscenities towards her. Gomez told Officer Doe he did not need to yell at his mother.

Gomez then had his back to Officer Doe. Officer Doe approached Gomez from behind and positioned himself so that when Gomez turned, Gomez unintentionally bumped into Officer Doe. When Gomez turned and bumped into him, Officer Doe screamed, "you touched me"; "he has to be arrested"; and "resisting! resisting!" Officer Doe then grabbed Gomez by the neck, choked him, and slammed him against the passenger side of the vehicle. After slamming Gomez into the car, Officer Doe demanded to know Gomez's immigration status, and Gomez informed him that another officer had already checked his status.

Doe then handcuffed Gomez and asked if he had any sharp objects on him, and Gomez said he only had his keys. Officer Doe stated that Gomez would be "raped by black men" when "[Gomez] was in the jail." Doe then searched Gomez's pockets and confiscated Gomez's keys. Gomez was subsequently released.

Gomez did not allege the length of time for which he was temporarily detained. Gomez also does not allege the length of time for which he was choked or handcuffed. And Gomez does not allege where Officer Doe placed him after slamming him into the vehicle.

During this encounter, Gomez never physically or verbally resisted Officer Doe.

Gomez subsequently filed a complaint against Officer Doe and the United States alleging civil rights violations. Gomez later amended his complaint and alleged two counts against Officer Doe-false arrest and excessive force-brought pursuant to Bivens. Gomez's amended complaint also alleged three counts against the United States-false arrest, battery, and intentional infliction of emotional distress-brought pursuant to the FTCA. The defendants moved to dismiss.

In a memorandum order dated December 2, 2013, the district court granted the defendants' motion to dismiss. In its order, the district court first addressed Gomez's false arrest claim against Officer Doe. The district court concluded, based on the facts alleged in Gomez's complaint, that Gomez's detention "did not constitute a full custodial arrest." The district court held that Gomez's constitutional rights were not violated by his temporary detention pending the arrest of his father because "[t]he officers had an interest in preventing the flight of other possible law breakers or unlawful immigrants on the premises as well as an interest in protecting their own safety during the pendency of the arrest."4 The district court also dismissed Gomez's claim for false arrest against the United States, pursuant the FTCA, concluding that the finding of qualified immunity in favor of Officer Doe "precludes the analogous FTCA claim."

Turning to Gomez's excessive force and battery claims, the district court concluded that "the brief choking and slamming of Gomez against a vehicle" was de minimis force and that Officer Doe was therefore entitled to qualified immunity as to the excessive force claim. The district court then reached the same finding as to Gomez's battery claim against the United States, which was governed by Florida law, pursuant to the FTCA.

Gomez timely appealed.


We review de novo a district court's grant of a Rule 12(b)(6) motion to dismiss, accepting all factual allegations in the complaint as true and construing them in the light most favorable to the plaintiff. Butler v. Sheriff of Palm Beach Cnty., 685 F.3d 1261, 1265 (11th Cir. 2012).

Under Rule 12(b)(6), the plaintiff bears the "obligation to provide the 'grounds' of his 'entitlement to relief.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964–65 (2007) (brackets omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 (2009). Indeed, "a complaint's factual allegations must be enough to raise a right to relief above the speculative level." Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 974 (11th Cir. 2008) (internal quotation marks and brackets omitted).

We may affirm for any reason supported by the record, even if not relied upon by the district court. United States v. Al-Arian, 514 F.3d 1184, 1189 (11th Cir. 2008).


We begin our analysis of Gomez's appeal by reviewing our qualified immunity jurisprudence, and we then turn to Gomez's specific arguments.

A. Qualified Immunity

"Qualified immunity protects government officials performing discretionary functions from suits in their individual capacities unless their conduct violates 'clearly established statutory or constitutional rights of which a reasonable person would have known.'"5 Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003) (quoting Hope v. Pelzer, 536 U.S. 730, 742, 122 S.Ct. 2508, 2516 (2002) (quotation marks omitted)).

Qualified immunity applies to a defendant who establishes that he was a government official "acting within the scope of his discretionary authority when the allegedly wrongful acts occurred." Courson v. McMillian, 939 F.2d 1479, 1487 (11th Cir. 1991) (quotation marks omitted). "Once the defendant establishes that he was acting within his discretionary authority, the burden shifts to the plaintiff to show that qualified immunity is not appropriate." Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002).

The "threshold inquiry" in determining whether qualified immunity is appropriate is "whether plaintiff's allegations, if true, establish a constitutional violation." Pelzer, 536 U.S. at 736, 122 S.Ct. at 2513. If the plaintiff's allegations, taken as true, fail to establish a constitutional violation, qualified immunity attaches and the district court should dismiss the complaint. Chesser v. Sparks, 248 F.3d 1117, 1121 (11th Cir. 2001).

Even if the plaintiff alleges facts that would establish a violation of a constitutional right, qualified immunity will shield the defendant from suit unless the right was "clearly established at the time of the alleged violation." Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Whittier v. Kobayashi, 581 F.3d 1304, 1308 (11th Cir. 2009) (quotation marks omitted).

"[W]e need not employ a rigid two-step procedure, but rather may exercise our discretion to decide 'which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.'" Gilmore v. Hodges, 738 F.3d 266, 273 (11th Cir. 2013) (quoting Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct. 808, 818 (2009)).

B. Gomez's False Arrest Claim against Officer Doe

On appeal, Gomez states that "[t]he discrete issue before this Court is...

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