[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT FILED

U .S . COURT OF APPEALS

E L E V E N T H CIRCUIT

S e p t e m b e r 15, 2006

N o . 06-10210 T H O M A S K. KAHN

N o n - A r g u m e n t Calendar CLERK

D . C. Docket No. 04-00298-CV-3-J-32HTS

M IC H A E L LEE MONGEAU,

Plaintiff-Appellant,

versus

JACKSONVILLE SHERIFF'S OFFICE, et al.,

Defendants,

S. M. FARRIS, Ofc,

D. B. EDMONDS, Ofc,

M.E. GORSAGE, Ofc,

Defendants-Appellees.

A p p e al from the United States District Court

fo r the Middle District of Florida

(S ep tem b er 15, 2006)

B efo re BLACK, CARNES and PRYOR, Circuit Judges.

P E R CURIAM: M ic h a el Lee Mongeau, proceeding pro se, appeals the district court's order g ran tin g final summary judgment on behalf of Jacksonville Sheriff's officers, F arris, Edmonds, and Gorsage. We affirm.

I.

O n September 8, 2003, Michael Mongeau, was arrested following two s ep a r ate high speed police chases. The first chase began that morning when M o n g e a u ignored a patrolling officer's attempts to pull him over. Several other o fficers joined the pursuit which lasted for over two hours. Mongeau eventually ev ad ed the officers by parking the car and entering a local mall. The second chase b e g a n several hours later when Mongeau left the mall. The plaintiff was far more r ec k le ss during this second pursuit, running red lights and entering the highway g o in g the wrong direction. The police used "stop-sticks" to end the chase, and M o n g eau lost control of the car and crashed into a light pole.

Several officers approached the immobilized vehicle with guns drawn, and M o n g e a u held his hands up in plain view. The officers instructed Mongeau to get o u t of the car, but he told them that he was stuck because his seatbelt was jammed in the locked position. Mongeau was semi-unconscious and in a state of shock fro m the accident and was therefore slow in responding to the officers' in s tr u c tio n s . Further, he claims that he could not keep his hands raised as ordered b ecau se of his injuries. When Mongeau lowered his hands and failed to exit the v e h ic le , Officer Gorsage released a police dog through the window. Mongeau p ro tested and fought the dog. Gorsage recalled the canine, and the officers again to ld Mongeau to get out of the car and raise his hands. When he failed to comply, S erg ean t White approached the vehicle and sprayed Mongeau with pepper spray to in cap acitate him. Nonetheless, Mongeau still failed to raise his hands, and the dog w as deployed a second time. Officer Farris was present but took no steps to p rev en t this second attack. The dog was called off when Mongeau again put his h an d s up. Subsequently, several officers reached through the passenger window a n d pulled Mongeau out of the car. They slammed him onto the ground, and beat h is head and back in an attempt to subdue him. They eventually were able to h a n d c u f f him. Officer Edmonds then placed his knee on Mongeau's upper back an d neck to keep him on the ground, even though he was no longer struggling.

The entire incident was captured on videotape by a camera attached to one of the p u r su in g officer's patrol car.

A n ambulance arrived on the scene shortly after Mongeau was handcuffed, an d the paramedics cleaned his wounds. Officer Farris then drove him to the co u n ty jail, but upon arrival, Farris was instructed to first take Mongeau to the h o sp ital for treatment. After two hours at the hospital, Mongeau was charged with felo n y fleeing or attempting to elude, grand theft auto, and reckless driving. The state later dismissed the grand theft auto and reckless driving charges.

M o n g e a u filed a lawsuit against all three officers, claiming that they em p lo yed excessive force in his arrest in violation of 42U.S.C. § 1983.

Specifically, he claimed that: 1) Farris failed to intervene when the police dog was d e p lo y e d for the second time; 2) Edmonds used excessive force in placing his knee o n Mongeau's back when Mongeau was handcuffed on the ground; 3) Gorsage u sed excessive force in deploying the canine twice; 4) all three officers had a h is to r y of violating police procedures and receiving reprimands; 5) all three o fficers failed to follow protocol; and 6) Mongeau suffered injuries from the dog a tta c k .

D efen d an ts Farris, Edmonds, and Gorsage responded by filing a motion for s u m m a ry judgment, raising qualified immunity as an affirmative defense. They co n ten d ed that they acted in good faith, within the scope of their duties, and in a m an n er they reasonably believed to be consistent with the law and procedures of th e Jacksonville Sheriff's Office. Even if Mongeau could establish a viable co n stitu tio n al violation, the officers asserted that they are nonetheless protected by q u alified immunity.

T h e district court entered an order on December 21, 2005, granting the d e f en d a n ts ' motion for summary judgment as to all claims. The court found that th e videotape of the incident demonstrated that the arrest occurred quickly and efficien tly and that there was no evidence of excessive force. Furthermore, the co u rt held that the officers' actions were objectively reasonable in light of the to ta lity of the circumstances and that the officers were justified in fearing Mongeau as a real threat. This appeal followed.

II.

W e review a grant of summary judgment de novo, resolving any genuine d is p u te of material fact in favor of the nonmoving party. Zipperer v. City of Fort M yers, 41 F.3d 619, 622 (11th Cir. 1995). Summary judgment is appropriate "if th e pleadings, depositions, answers to interrogatories, and admissions on file, to g eth er with the affidavits, if any, show that there is no genuine issue as to any m aterial fact and that the moving party is entitled to a judgment as a matter of law ." Fed. R. Civ. P. 56(c). We review a denial of sanctions under an abuse of d is cr etio n standard. Phipps v. Blakeney, 8 F.3d 788, 790 (11th Cir. 1993). III.

A.

M o n g e a u contends that genuine issues of material fact exist as to whether th e force employed by the officers was excessive in violation of the Fourth A m en d m en t. He claims that the record demonstrates factual conflicts and that he w as trying to cooperate with the officers but was limited by his injuries.

The officers respond that the evidence, even as construed in favor of the p lain tiff, demonstrates that their actions were reasonable given the facts. Looking at the totality of the circumstances and the facts known to them, the officers argue th at they were justified in believing that Mongeau was dangerous and willing to tak e any risk to elude capture.

In dealing with a Fourth Amendment excessive force claim, the question b eco m es "whether the officers' actions are `objectively reasonable' in light of the f ac ts and circumstances confronting them," taking into account that "police o f f ic er s are often forced to make split-second judgments---in circumstances that are tense, uncertain, and rapidly evolving---about the amount of force that is n ecessary in a particular situation." Graham v. Connor, 490 U.S. 386, 396­97, 109 S . Ct. 1865, 1872 (1989). This reasonableness inquiry "must be judged from the p ersp ectiv e of a reasonable officer on the scene, rather than with the 20/20 vision o f hindsight." Id. at 396, 109 S. Ct. at 1872. We have held that: [W ]e are not to view the matter as judges from the comfort and safety o f our chambers, fearful of nothing more threatening than the o c c as io n a l paper cut as we read a cold record accounting of what tu r n e d out to be the facts. We must see the situation through the eyes o f the officer on the scene who is hampered by incomplete in fo rm atio n and forced to make a split-second decision between action an d inaction in circumstances where inaction could prove fatal.

C ro sb y v. Monroe County, 394 F.3d 1328, 1333­34 (11th Cir. 2004).

Additionally, it has been "long recognized that the right to make an arrest or in v estig ato ry stop necessarily carries with it the right to use some degree of p h ysical coercion or threat thereof to effect it." Graham, 490 U.S. at 396, 109 S.

C t. at 1871­72. The amount of force that a police officer reasonably can use w ith o u t being excessive, however, depends on the totality of the circumstances, in c lu d in g "the severity of the crime at issue, whether the suspect poses an im m ed iate threat to the safety of the officers or others, and whether he is actively resistin g arrest or attempting to evade arrest by flight." Id.

Thus, in determining whether the officers' conduct in this case was reaso n ab le, we are to consider the totality of the circumstances as viewed by the o fficers in the heat of the moment, bearing in mind these four significant facts.

First, Mongeau was charged with three serious crimes: grand theft auto, reckless d riv in g , and felony fleeing or attempting to elude. Second, Mongeau's r ec k le ss n e ss in evading capture clearly posed great danger to both the officers p u r su in g him and numerous civilians. He ran traffic lights, sped, and even entered th e highway going the wrong direction. This conduct reasonably led the officers to b eliev e that Mongeau had little regard for his own life or others. They justifiably f ea re d that he might be armed. Third, Mongeau resisted arrest by refusing to get o u t of the car and repeatedly refusing to raise his hands, which reasonably could h a v e led the officers to believe that he might reach for a weapon. Fourth, Mongeau w as a flight risk, as evidenced by the high speed chase and his refusal to cooperate w ith the officers. The totality of the circumstances, including these four facts, e sta b lis h that the conduct of the officers in restraining and incapacitating Mongeau w a s not excessive.

1.

S p ecifically, the use of the canine was objectively reasonable because M o n g eau admitted that he responded slowly to the officers' orders to show his h an d s and failed to keep his hands raised. Based on his prior dangerous conduct, th e officers reasonably believed that Mongeau might be reaching for a weapon or a b o u t to flee each time he dropped his hands. The dog was used only briefly when M o n g eau failed to comply with the officers' orders. Mongeau admits that the dog w as called off when he followed the orders. Both the first and second deployment o f the dog were reasonable in the circumstances. Because the use of the dog was reaso n ab le, Officer Farris' failure to intervene to prevent that use was also r ea so n a b le .

M o n g eau cites Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994), to support his co n ten tio n that the use of the police dog was unreasonable. The Chew case is d is tin g u is h a b le from this one. First, the dog used in Chew was sent to locate a co n cealed suspect and was out of the handler's sight. Id. at 1441. As a result, the h a n d le r could not stop the dog's attack. Id. By contrast, in this case, the handler w as present and the dog was instantly called off once Mongeau complied with the o fficers' orders by raising his hands. Second, in Chew there was no basis for co n cern that the suspect was armed or dangerous. Id. at 1442. In this case, the o fficers reasonably feared that Mongeau might have a weapon and was willing to g o to desperate extremes to escape. Third, the officers in Chew had ample time to co n sid er their tactics in apprehending the suspect, id. at 1443, while the officers in o u r case had to make high risk, split-second decisions. Whatever we might decide if the facts of Chew were before us, they are not. Under the facts of this case the deployments of the dog to prevent Mongeau from obtaining a weapon or fleeing w ere reasonable under the circumstances. 2.

A d d itio n ally, Edmonds placement of his knee on Mongeau's back to subdue h im was objectively reasonable given Mongeau's previous resistance and risk of flig h t. Some degree of physical force is necessary in making an arrest where the su sp ect has refused to comply with the officers' orders. See Graham 490 U.S. 396, 1 0 9 S. Ct. at 1871­72. The videotape of the arrest shows that once Mongeau was h a n d c u f fe d the officers stopped using force against him, except that which was n e c es sa ry to hold him down and ensure that he did not flee.

3.

F in a lly , Mongeau contends that the defendants failed to follow proper p ro ced u re both in using pepper spray and in failing to provide medical attention after use. First, the use of pepper spray here was objectively reasonable for the s am e reasons that it was reasonable to use the dog and to hold Mongeau down after h e was handcuffed. The defendants had a reasonable fear that Mongeau was armed an d dangerous, and they were justified in incapacitating him before removing him fro m the vehicle and in holding him down once he was outside the vehicle.

Second, Mongeau's claims that the officers failed to follow protocol in providing im m ed iate medical assistance are unfounded. The Operational Order of the J ac k s o n v ille Sheriff's Office mandates that medical assistance be provided "as so o n as practical" after a chemical weapon is used. Mongeau admitted in his d e p o s itio n that an ambulance arrived shortly after he was removed from the car a n d that paramedics cleaned his wounds. Additionally, the videotape shows that em er g en cy personnel were on the scene within twenty minutes of Mongeau's rem o v al from the vehicle. Thus, Mongeau's claim that the district court failed to co n sid er whether the officers' properly adhered to pepper spray procedure is w ith o u t merit.

B.

Mongeau asserts that the officers are not entitled to qualified immunity b ecau se they were not acting within the scope of their discretionary authority. As w e have noted, no constitutional violation occurred under the present facts, so we n eed not reach the issue of whether they would be entitled to qualified immunity if a violation had occurred.

C.

F in ally, Mongeau contends that the defendants failed to comply with his d is co v e ry requests for photographs and the transcript of the deposition of an u n k n o w n defense witness. He claims that without these materials he could not s u f fic ie n tly prepare his case. He calls for a reversal of the grant of summary ju d g m en t, an order compelling the requested discovery, and sanctions. T h e record reflects that the officers responded in a timely manner to the co u rt's discovery order. They provided Mongeau with photographs, videotapes, a n d final action reports, and appropriately objected to his discovery requests that w ere vague or overly broad. The defendants turned over everything in their p o ssessio n , including more than 1,200 pages of documents. There was no d isco v ery violation and no basis for sanctions.

D.

T o the extent that Mongeau is suing the defendants in their official capacity, th e district court properly ruled that any such claim fails, because Mongeau did not p r e se n t any evidence of a custom or policy that deprived him of his constitutional r ig h ts . He is not challenging the procedures themselves, but rather is alleging that th e defendants failed to properly follow those procedures. Thus, no valid official cap acity claim exists.

A F F IR M E D .