Victor Lamar Clement v. Carl Lively, 708 F. App'x 585

On Nov. 3, 2011, Officer Bryan McCarley issued a BOLO for a male driving a black Mustang; Victor Clement, driving a black Mustang, was later encountered by Officer Carl Lively.
Lively pursued Clement at high speed; an interaction occurred in which Clement’s vehicle and the patrol car collided; Lively’s affidavit describes Clement hitting the patrol car first, then backing and striking the passenger side.
Clement was arrested and pleaded guilty to aggravated assault (for striking the patrol car), obstruction, and attempting to elude police.
Clement sued under 42 U.S.C. § 1983 for false arrest and excessive force against Lively (individual capacity); district court narrowed the case to those claims and a state tort claim.
Lively moved for summary judgment with an affidavit; the magistrate judge found Lively’s statement of facts supported by the record and, because Clement’s pro se responses violated Local Rule 56.1B, deemed Lively’s facts admitted and recommended granting summary judgment.
The district court adopted the recommendation, holding the false-arrest claim barred by Heck and, alternatively, that Lively was entitled to qualified immunity on the excessive-force claim; Clement appealed, challenging denial of late subpoenas, the deeming of facts admitted, Heck application, and qualified immunity ruling.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Denial of subpoenas duces tecum	Magistrate abused discretion; subpoenas were needed for discovery	Motion filed six days before discovery end; no good cause for delay	Waived on appeal for failing to object; alternatively, denial not an abuse of discretion for lack of good cause
Deeming movant’s facts admitted under Local Rule 56.1B	As a pro se litigant, Clement should have leniency; facts should not be deemed admitted	Lively complied with Local Rule; Clement’s responses did not correspond, lacked citations, were argumentative	No abuse of discretion; pro se status does not excuse failure to follow procedural rules; facts properly deemed admitted
False-arrest claim barred by Heck v. Humphrey	Arrest was false; conviction does not preclude § 1983 claim	A judgment for Clement would necessarily imply invalidity of convictions for offenses he pleaded guilty to	False-arrest claim barred by Heck because success would imply invalidity of convictions
Excessive-force claim and qualified immunity	Force was excessive; genuine issue of fact exists	Even taking Lively’s facts, force was objectively reasonable given flight, speed, erratic driving; qualified immunity applies	Excessive-force claim not barred by Heck, but Lively entitled to qualified immunity under the Fourth Amendment reasonableness standard

Heck v. Humphrey, 512 U.S. 477 (1994) (a § 1983 claim that would imply invalidity of conviction is barred unless conviction invalidated)
Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (summary judgment standard and nonmovant’s burden to show genuine issue)
McNeil v. United States, 508 U.S. 106 (1993) (pro se status does not excuse compliance with procedural rules)
Dyer v. Lee, 488 F.3d 876 (11th Cir. 2007) (excessive-force claim not barred by Heck when force occurred after conduct forming basis of conviction)
Sharp v. Fisher, 532 F.3d 1180 (11th Cir. 2008) (striking a fleeing vehicle with a patrol car constitutes a seizure; reasonableness factors apply)
Edwards v. Shanley, 666 F.3d 1289 (11th Cir. 2012) (apply Fourth Amendment objective-reasonableness test for excessive force)
Hadley v. Gutierrez, 526 F.3d 1324 (11th Cir. 2008) (qualified immunity framework for discretionary official conduct)