Theodore Dukes v. Miami-Dade County

PER CURIAM: Officers Eric Goldberg, Kimberly Llam-bes, Enrique Guerra, and Regina Dean appeal the denial of their motion for summary judgment based on qualified immunity. The district court concluded that genuine issues of material fact barred summary judgment. We affirm. Theodore Dukes, Lynn Smith, and Brian Scruggs filed a complaint against officers Goldberg, Llambes, Guerra, and Dean that alleged injuries arising out of a traffic stop followed by a chase and arrest. Dukes, Smith, and Scruggs alleged that the officers used excessive force in violation of the Fourth and Fourteenth Amendments of the U.S. Constitution and failed to intervene when other officers used excessive force during the arrest. The officers moved to dismiss the complaint based on qualified immunity, which the district court denied in part. The officers appealed. We affirmed in part and concluded that the complaint alleged sufficient facts to create a issue of fact about Goldberg’s use of force and the ability of the officers to intervene. Dukes v. Miami-Dade County, 232 Fed.Appx. 907 (11th Cir.2007). This second appeal by the officers concerns counts II, III, and IV of the fourth amended complaint. Again the district court denied the officers qualified immunity. The district court concluded that there were genuine issues of material fact about whether Goldberg was justified in using force against Dukes during the first stop; whether Goldberg and Dean used de min-imis force to arrest Dukes; whether Guerra and Llambes used excessive force to arrest Dukes; whether Guerra used de minimis force to arrest Scruggs; and whether Goldberg, Dean, ’Guerra, and Llambes failed to intervene while other officers used excessive force against Dukes. We review de novo the denial of summary judgment based on qualified immunity and construe all facts and make all reasonable inferences in the light most favorable to the nonmoving party. Tinker v. Beasley, 429 F.3d 1324, 1326 (11th Cir. 2005). The evidence presented by Dukes, Smith, and Scruggs creates jury questions about the need for Goldberg to use force, the amount of force used to arrest Dukes and Scruggs, and the officers’ presence, participation in, and failure to intervene in several assaults of Dukes after he was *301 handcuffed. The district court acknowledged the officers’ arguments regarding the absence of physical injury to substantiate Dukes’s and Scruggs’s allegations, but the district court correctly concluded that medical evidence was not required to create a genuine issue of material fact for trial. The district court correctly evaluated the motion for summary judgment in the light of allegations contained in the fourth amended complaint, which super-ceded the earlier complaints. See Lowery v. Ala. Power Co., 483 F.3d 1184, 1219-20 (11th Cir.2007). Any contradictions in the allegations made by Dukes, Smith, and Scruggs may be used at trial to impeach them or to attack their credibility. See Fed.R.Evid. 608(b); Jackson v. McWil-liams Dredging Co., 76 F.2d 795, 797 (5th Cir.1935). The denial of summary judgment is AFFIRMED.