Baysa v. Gualtieri et al

Filing 70

ORDER granting [43, 44, 45] Defendants' Motions for summary judgment; denying 47 Plaintiff's Motion for summary judgment. The Clerk is directed to enter judgment, terminate any pending motions/deadlines and close the case. Signed by Judge William F. Jung on 10/24/2018. (CCB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
MAT S. BAYSA,
Plaintiff,
v.

Case No. 8:17-cv-00434-T-02SPF

ROBERT GUALTIERI, in his official
Capacity as SHERIFF of the Pinellas
County Sheriff’s Office, CHARLES REDINGER,
Individually and as Pinellas County Deputy,
STEPHANIE ARCHER, individually and as
Pinellas County Deputy Sheriff,
Defendants.
__________________________________/

ORDER
This matter comes to the Court on cross-motions for summary judgment.
Dkts. 43, 44, 45, 47. The action stems from an alleged use of excessive force by
two deputies responding to an early morning call at a poker room in Pinellas
County. Dkt. 23. In his Amended Complaint, Plaintiff Baysa alleges violations of
his Fourth Amendment rights under 42 U.S.C. § 1983 against Deputies Charles
Redinger and Stephanie Archer (hereinafter collectively “Deputies”) and their
employer, Robert Gualtieri in his official capacity as Sheriff of the Pinellas County
Sheriff’s Office (hereinafter “PCSO”).1 Id. Plaintiff also brings state law claims of
1

The § 1983 claims against the Deputies feature alternative theories for excessive force during a lawful
arrest (counts II and III) and false arrest and excessive force during an unlawful arrest (counts IV and V).

false arrest and imprisonment, battery, and assault against all three Defendants and
malicious prosecution against the Deputies. Id.
For the following reasons, the Court GRANTS Defendants’ Motions for
Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment.
BACKGROUND
In the early morning of June 10, 2013, Plaintiff was playing cards at Derby
Lane Poker Room in St. Petersburg, Florida. Dkt. 43-11 at 18, 43-8 at 332. Plaintiff
testified that, while there, he had two shots of Jägermeister and two beers, though
one had spilled some of its contents. Dkt. 43-8 at 42.
Plaintiff claims that, upon Plaintiff winning, a security guard began to “birddog” or closely watch him at the card table. Dkt. 43-11 at 22. Though not deposed
for this civil action, the security guard testified at Plaintiff’s criminal trial that,
when cashing out, Plaintiff reached his hand “over the top bar of the cashier
window” and was causing a disturbance. Dkt. 43-5 at 48, 60. Plaintiff disputes this
and maintains he instead gave the cashier a $9 tip. Dkt. 43-8 at 43. He then exited
the card room and walked to a drive-through ramp from which he could see his car.
Id. at 44. Plaintiff testified he started to go out, and then walked back in, raised his

The claim of excessive force during an unlawful arrest, however, is subsumed by the false arrest claim
and is not discrete. See Jackson v. Sauls, 206 F.3d 1156, 1171 (11th Cir. 2000).
2
On April 23, 2014, Plaintiff went to trial on criminal charges arising from his activity at Derby Lane in
Case No. CTC13-13352MMANO, County Court of the Sixth Judicial Circuit of Florida, Pinellas County.
Deputy Redinger included the trial transcript in full in his Motion for Summary Judgment. Dkt. 43-3 –
43-9.
2

voice, and accused the security guard of staring at him all night. Dkt. 43-11 at 2526.
According to the security guard, however, after the disturbance at the
cashier’s box the guard confronted Plaintiff who was “belligerent and
argumentative” and appeared to be “extremely intoxicated.” Dkt. 43-5 at 49, 51.
The security guard escorted Plaintiff, who was no longer permitted in the card
room, outside the room. Id. at 51. Plaintiff reentered. Id. at 52, 43-11 at 25. The
security guard once more ordered Plaintiff to leave, noting “he would no longer be
permitted to wait on the ramp area, that he was going to have to go down to the
ground or parking lot level.” Dkt. 43-5 at 52.
The security guard estimated that he ordered Plaintiff to leave six times and,
even when told police would be called, Plaintiff continued to argue in a raised
voice. Id. at 52. Plaintiff acknowledges a confrontation at some point, testifying
that the guard was “screaming profanities at him” and Plaintiff was “of course . . .
giving it right back to him.” Dkt. 43-11 at 27. Derby Lane staff called police to
witness a trespass warning against Plaintiff. Dkt. 43-5 at 53.3 In his deposition,
Plaintiff fairly admits he was trespass-warned by the security guard: “He told me to
stay away . . . He told me to go outside.” Dkt. 43-11 at 32-34.

3

The contents of this call were not included in summary judgment materials.
3

According to Plaintiff, when he had looked outside at the parking lot he
noticed movement by his car, which frightened him. Dkt. 43-11 at 25, 27. At the
criminal trial, Plaintiff testified he thought he was being set up for a DUI. Dkt. 438 at 64. Plaintiff called 911. Baysa Dep. Ex. 2.4
On the call it is clear Baysa is manic and sounds very intoxicated. Id.
Throughout the conversation, Plaintiff shouts, uses obscenities, and speaks over the
dispatcher; he is also overheard trying to persuade a departing patron of Derby
Lane to assist him. Id. Plaintiff told the dispatcher that the security guard had a
gun, id. 00:30, 04:24, was aggressive, id. 00:18, had threatened him and that
Plaintiff felt in danger, id. 01:37. By the middle of the call Plaintiff is yelling in a
fury, demanding the dispatcher to “bring the cops” and to take him home as he was
in danger: “I want to get picked up and taken home.” Id. 03:52.
Plaintiff informed the dispatcher one of the guards (presumably the security
guard) told him “go home, go home,” id. 00:12, and “go outside,” id. 2:06, and
“they told [him] stay away,” id. 00:57. This suggests clearly Plaintiff was told to
leave by Derby Lane security. Plaintiff further testified his words on this call also
may have included “. . . me being banned.” Dkt. 43:11 at 50. It is also very clear
that Plaintiff was enraged at the security guard. He yelled that he wanted the guard
arrested “for harassing me,” and that “I came here to gamble. I played. F--- him.

4

Baysa’s 911 call was included in summary judgment materials as an audio file. Id.
4

He thinks he’s got the power trip because he works here. Do you hear me?” Id. at
40; see also id. at 87-88 (plaintiff agreed he had “a beef” with the security guard).
The Deputies arrived on the scene around 2:50 a.m. Dkt. 43-14 at 25. The
security guard was standing outside with “at least four other security guard staff
members.” Id. at 26. Deputy Redinger spoke with the security guard who said that
Plaintiff was “acting in a disorderly fashion” and that Derby Lane wanted to issue a
trespass warning. Id. at 28. The security guard then repeated the warning to
Plaintiff in the presence of Deputy Redinger. Id. Deputy Redinger attempted to
reiterate the nature of the warning but, according to Deputy Redinger, Plaintiff
would not listen to the warning and was belligerent, not responsive, and “giving
various profanities,” id. at 29, though “most of this anger and agitation was
directed towards the [Derby Lane] staff,” id. at 31. He appeared intoxicated. Dkt.
43-6 at 7. Plaintiff testified Deputy Redinger did give him trespass warnings that
Plaintiff disputed, continuing to “try[] to make [his] point . . . to make an
argument.” Dkt. 43-11 at 60.
Deputy Redinger further stated that Plaintiff continued to “verbally be
aggressive” with Derby Lane staff and pace back and forth; the second time he
approached the security guard “[Plaintiff] was in an aggressive stance, shoulders
back, chest out, bowing his chest up and you can see clenched fists.” Dkt. 43-14 at
31. The third time, Deputy Redinger “felt there was an imminent issue where he
5

might strike [the security guard] now. That’s when [Redinger] stepped in and tried
to effect an arrest at that point.” Id. at 32.
Plaintiff does not dispute that Deputy Redinger “walked over . . . and told
[him] that, yes, they are going to issue a trespass . . . [Redinger] told [Plaintiff] to
never come back over there again.” Dkt. 43-11 at 60. According to Plaintiff,
Deputy Redinger ended the conversation by saying “Don’t come back here
anymore. You’re free to go.” Id. at 61. Plaintiff then took a few steps away from
Deputy Redinger. Id. at 62. Plaintiff testified at his criminal trial that while he
walked away “someone grabbed [him] or – and [he] just fell head first . . . [t]hen
after that, [he] felt [his] neck got twisted a little bit and that’s it.” Dkt. 43-8 at 51.
The next thing he remembered is being “in the handcuffs in the back of the cruiser
. . . .” Id. at 53.
In his deposition in this civil matter, Plaintiff first reiterated that his criminal
trial testimony, with its limited statement of an assault, was true. Dkt. 43-11 at 10,
11, 15, 16. But upon being examined by his own attorney at his civil deposition,
Plaintiff provided a different version. He testified that his memory had come back
to him now and he recalled that he “[felt] punches and kicks all over [his] body”
before passing out, id. at 14, and had concluded that he was choked, id. at 17, 152.
Plaintiff’s more recent testimony differed substantially and materially from his

6

criminal trial: There he did not testify that he was punched or kicked while on the
ground or that he was choked.
According to Deputy Redinger, in contrast, Deputy Redinger grabbed
Plaintiff’s wrists to restrain him at which point Plaintiff “brace[d] up . . . and
tr[ied] to pull away from [Redinger].” Dkt. 43-14 at 36. Deputy Redinger then
pushed Plaintiff against the side of his patrol car to prevent Plaintiff’s movement.
Id. at 37. Plaintiff broke free and tried to turn, so Deputy Redinger used a
“hurried,” “modified” takedown by bringing his left arm across Plaintiff’s chest in
a diagonal position and continuing to hold onto Plaintiff’s other hand with his right
arm. Id. at 39. The left arm or inside of the elbow may have been pressing against
Plaintiff’s neck. Id. at 42, 48; Dkt. 43-5 at 56 (the security guard testified Deputy
Redinger “had to grab [Plaintiff] by his shoulders, about his neck, and they
struggled”).
Plaintiff fell face first onto the asphalt pavement with Deputy Redinger on
top of him. Dkt. 43-14 at 40. Deputy Redinger’s arm was trapped under Plaintiff
and may have been applying pressure to Plaintiff’s neck. Id. at 43. To pull
Plaintiff’s arms out from under him for handcuffing, Deputy Redinger used two
“palm heel strikes,” an open hand where the “striking area is the heel of your
palm,” “somewhere from [Plaintiff’s] shoulder to waistline.” Id. Deputy Redinger

7

eventually pulled Plaintiff’s hands free. Id. at 44. The security guard and perhaps
Deputy Archer then assisted with the handcuffs. Dkt. 43-5 at 56.
Deputy Redinger did not know the location of Deputy Archer during the
arrest prior to handcuffing. Dkt. 43-14 at 36, 38, 41. In her deposition, Deputy
Archer did not recall much about the arrest, though she stated that she has never
seen a deputy use a chokehold, including during the arrest of Plaintiff. Dkt. 43-10
at 22. Plaintiff testified he had no knowledge of Archer using force upon him. Dkt.
41-11 at 135. Deputy Archer did not take statements and was not called as a
witness at Plaintiff’s criminal trial. Dkt. 43-10 at 19, 27.
After handcuffing Plaintiff, Deputy Redinger escorted him to the back of
Deputy Redinger’s patrol car and took him to the police station. Dkt. 43-14 at 49,
Dkt. 43-10 at 24. During the ride Plaintiff and Deputy Redinger spoke in normal
conversational tones, Baysa’s Dep. Ex. 35, and Plaintiff agrees they had a calm,
“casual” conversation. Dkt. 43-14 at 81. Plaintiff said in the car that he was good
with people and that the security guard gave him a bad night. Id. at 88; Baysa Dep.
Ex. 3 at 3:08. At no point during the conversation does Plaintiff talk about being
hurt or choked or ask to go to the hospital. Dkt. 43-14 at 98.

5

The dashboard cam video, which faced outside the patrol car, was included in summary judgment
materials. Baysa Dep. Ex. 3. Notwithstanding the poor audio quality, it is possible to make out the
conversation, which Defendants’ counsel walked Plaintiff through during his deposition. The audible
section of the conversation lasts for about six minutes from around 01:00 to 07:00.
8

At the jail, Plaintiff was seen by a nurse and received a bag of ice for his
injuries. Dkt. 43-9 at 2. After leaving jail, Plaintiff stopped for cigarettes and
Gatorade and went to his sister’s house. Dkt. 43-11 at 98. Later that day, he went to
Tampa General Hospital to seek treatment. Id. at 109.
A hospital report from the instant incident6 states Plaintiff was “complaining
[of a] slash of forehead. Neck, left rib and right elbow pain,” “denies visual
problems” and notes “[Plaintiff’s sclera] is red and slightly swollen. Mid-facial
swelling noted in forehead in orbital area. No [loss of consciousness].” Id. at 12324; Dkt. 48-2 at 12. The medical report further observed “Bowing of the left
medial orbital wall which appears discontiguous in some portions and may
represent a small fracture, however this may also represent a congenitally thin
lamina papyracea with variant appearance.” Dkt. 48-2 at 3. This possible fracture
was in any event not acute and needed “no intervention.” Dkt. 43-11 at 124-25.
Plaintiff was ultimately diagnosed with “facial contusion, eye contusion,
subconjunctival hemorrhage, elbow abrasion, abrasions of multiple sites, headache,
and rib contusion.” Dkt. 48-2 at 4. There is no mention in the report of bruising
around his neck or choking.

6

Plaintiff was no stranger to Tampa General, and had sought medical treatment there the year before. Dkt. 43-11 at
110. In that incident, he appeared at 2:00 a.m. seeking medical help when, while drinking, a colleague had punched
him three to four times in the left eye area, giving him a swollen eye and conjunctival hemorrhage and causing him
to spit blood. Id. at 117-21.

9

Plaintiff was discharged from the hospital the same day and never sought
treatment afterwards or had subsequent issues. Dkt. 43-11 at 125-26. Photographs
of Plaintiff following the incident do show redness on the neck and a swollen eye
area. Dkt. 48-4.
Plaintiff was arrested on misdemeanor counts of disorderly conduct in an
establishment and resisting arrest without violence. Dkt. 43-13 at 7. The State
Attorney’s Office for the Sixth Judicial Circuit of Florida later amended the
disorderly conduct charge to trespass. Dkt. 43-9 at 55. A jury acquitted Plaintiff of
both trespass and resisting arrest without violence. Id. at 70.
Plaintiff filed his Complaint more than three years later on February 21,
2017. Dkt. 1. All motions for summary judgment were filed on September 7, 2018.
Dkts. 43, 44, 45, 47.
SUMMARY JUDGMENT STANDARD
Under Rule 56, Federal Rules of Civil Procedure, “[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a); see also Mize v. Jefferson City Bd. of Educ., 93 F. 3d 739, 742 (11th
Cir. 1996). If met, the burden shifts to the nonmoving party to “come forward with
specific facts showing that there is a genuine issue for trial.” Shaw v. City of
Selma, 884 F. 3d 1093, 1098 (11th Cir. 2018).
10

“A fact is ‘material’ if it has the potential of ‘affect[ing] the outcome of the
case.’” Id. And, to raise a genuine “dispute,” the nonmovant must point to enough
evidence that “a reasonable jury could return a verdict for [him].” Id.
(modification in original). The Eleventh Circuit further teaches that “[w]hen
considering the record on summary judgment ‘the evidence of the nonmovant is to
be believed, and all justifiable inferences are to be drawn in his favor.’” Id.
(citations omitted).
DISCUSSION
Because the disposition of Plaintiff’s § 1983 claim against the Deputies will
resolve the remaining claims, the Court turns to it first. Section 1983 requires a
plaintiff to prove that (1) the defendants’ conduct violated a constitutional right,
and (2) the challenged conduct was committed “under the color of state law.”
Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016).
In response, Defendants invoke qualified immunity, which protects
government officials “from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231
(2009) (citations omitted). Plaintiff does not seem to dispute that in deciding to
arrest Plaintiff at Derby Lane the Deputies were acting within the scope of their
discretionary authority. See Bates v. Harvey, 518 F.3d 1233, 1242 (11th Cir. 2008).
11

Thus, to overcome the Deputies’ qualified immunity Plaintiff must show that (1)
the Deputies’ conduct violated a constitutional right, and (2) the right was clearly
established at the time of the Deputies’ alleged misconduct. Saucier v. Katz, 533
U.S. 194, 201 (2001); see also Pearson, 555 U.S. at 236 (2009) (courts free to
address inquiry in most appropriate order).
Plaintiff alleges that both the decision to and manner of arrest violated his
Fourth Amendment rights, so the Court must determine whether the Deputies had
probable cause to arrest Plaintiff and whether they acted reasonably during the
arrest. See Lee v. Ferraro, 284 F.3d 1188, 1194-98 (11th Cir. 2002) (citations
omitted). Because the Deputies both had probable cause and acted reasonably there
was no constitutional violation. In the absence of a violation, Plaintiff’s § 1983
claim against PCSO and the state law claims also fail.
I.

The Deputies had probable cause to arrest Plaintiff for trespass.
Probable cause to arrest “exists when the totality of the facts and

circumstances support a reasonable belief that the suspect had committed or was
committing a crime.” United States v. Lindsey, 482 F.3d 1285, 1291 (11th Cir.
2007 (citations and quotation marks omitted). This “requires only a probability or
substantial chance of criminal activity, not an actual showing of such
activity.” Illinois v. Gates, 462 U.S. 213, 245 n. 13 (1983); see also Ortega v.
Christian, 85 F.3d 1521, 1525 (11th Cir. 1996) (citations omitted) (“[P]robable
12

cause does not require overwhelmingly convincing evidence, but only ‘reasonably
trustworthy information.”).7
Importantly, an officer’s “subjective reason for making the arrest need not
be the criminal offense as to which the known facts provide probable cause.”
Devenpeck v. Alford, 543 U.S. 146, 153 (2004). It is thus of no import that the
Deputies arrested Plaintiff on disorderly conduct in an establishment and resisting
arrest without violence or that state prosecutors later amended the disorderly
charge to trespass. Similarly, whether Deputy Redinger ultimately decided to arrest
Plaintiff because he was uncooperative with the trespass warning or moving
towards the security guard in a fighting stance does not weigh into a probable
cause analysis.
Rather, the facts as known to the Deputies were sufficient to find probable
cause for trespass. As defined by Florida statute, someone “who, without being
authorized, licensed, or invited, willfully enters upon or remains in any property
other than a structure or conveyance [a]s to which notice against entering or
remaining is given . . . by actual communication . . . commits the offense of
trespass . . . .” Fla. Stat. § 810.09(1)(a). An order to leave can be “personally
communicated to the offender by the owner of the premises or by an authorized
person.” Fla. Stat. § 810.09(1)(b); see also Smith v. State, 778 So. 2d 329, 331 (Fla.
7

This threshold, of course, is significantly lower than the beyond a reasonable doubt standard of evidence
at a criminal trial. The jury’s eventual acquittal of Plaintiff is therefore irrelevant in determining whether
probable cause existed at the time of arrest.
13

2d DCA 2000) (“[W]hen an invitation has been extended to enter an open business
. . . actual communication is necessary to put a person on notice that he is no longer
welcome on the property and may be arrested for trespass.”).
To this end, the Deputies were “entitled to rely on allegations of an
informant and corroborating evidence” to find probable cause for trespass. See
Case v. Eslinger, 555 F.3d 1317, 1327 (11th Cir. 2009) (citations omitted).
The record shows the security guard personally communicated to Plaintiff
multiple orders to leave Derby Lane.8 Each was ignored. Indeed, Plaintiff’s own
words on the 911 make this fairly clear. Plaintiff himself also testified that he was
angry, yelling, and departed to the ramp area adjacent to the parking lot and then
returned inside the premises. There he accused the security guard of trying to “set
him up.”
The Deputies responded to a call to witness a trespass warning. Deputy
Redinger spoke with the security guard who stated that Plaintiff was “acting in a
disorderly fashion” and that Derby Lane wanted to issue a trespass warning.9
Having communicated the orders himself, the security guard had personal
knowledge of the alleged criminal conduct. See Daniels v. City of Hartford, Ala.,
645 F. Supp. 2d 1036, 1054 (M.D. Ala. 2009) (finding that personal knowledge

8

Though Plaintiff challenged the security guard’s authorization to issue an order to leave at the criminal
trial, see e.g., Dkt. 43-3 at 23, there is no such argument here.
9
It is worth noting the fact that this information was relayed to Plaintiff is undisputed, though its
underlying veracity may be.
14

bolsters an informant’s tip). The security guard’s identity was, moreover, readily
ascertainable and he was present when Deputies arrived on the scene.
The security guard then repeated the trespass warning to Plaintiff in at least
Deputy Redinger’s presence. Deputy Redinger testified he attempted to reiterate to
Plaintiff the nature of the warning but, according to Deputy Redinger, Plaintiff was
unresponsive, belligerent, and “giving various profanities.” Plaintiff testified in his
deposition that the Deputy instructed him to leave and Plaintiff disputed. By his
own admission, Plaintiff continued to “try[] to make [his] point . . . to make an
argument” in defiance of the Deputy’s trespass warning.10
In short, after being asked repeatedly to leave, Plaintiff would not. First,
fearing a DUI setup, in a manic rant he demanded the 911 operator to send
someone to take him home. Then, when the Deputies arrived, he disputed the
trespass instructions.
Having found probable cause for trespass based on the undisputed facts, the
Court deems it unnecessary to determine whether probable cause existed for some
other offense, whether arguable probable cause existed, see Case, 555 F.3d at 1327
(existence of arguable probable cause shields officer from false arrest liability

10

The prior warnings of Derby Lane staff and Plaintiff’s return to and refusal to leave the premises
distinguish this case from others like Gestewitz v. State, 34 So. 3d 832, 835 (Fla. 4th DCA 2010) (finding
that in the absence of reasonable suspicion officers lacked authority to detain an individual to issue a
trespass warning). Indeed, whether the encounter between Plaintiff and the Deputies is characterized as
consensual or a detention, the Deputies nonetheless had sufficient suspicion to arrest. See id. at 834
(police can only arrest for trespass if “owner or his agent first warned the potential trespasser”).
15

through “clearly established” prong of qualified immunity), or whether other
defenses such as immunity pursuant to Fla. Stat. § 509.143(3) apply.
This finding, moreover, is an “absolute bar” to Plaintiff’s § 1983 false arrest
claim, see Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir. 1998), as well as the
state law malicious prosecution and false arrest and imprisonment claims, see
Fischer v. Debrincat, 169 So. 3d 1204, 1206 (Fla. 4th DCA 2015) (requiring
“absence of probable cause for the original proceeding” for malicious prosecution);
Johnson v. Barnes & Noble Booksellers, Inc., 437 F.3d 1112, 1116 (11th Cir.
2006) (noting that Florida false imprisonment requires detention to be unlawful);
Willingham v. City of Orlando, 929 So. 2d 43, 48 (Fla. 5th DCA 2006) (observing
that probable cause is affirmative defense to false arrest).11
II.

The Deputies acted reasonably in their lawful arrest of Plaintiff.
To not run afoul of the Fourth Amendment during a lawful arrest, officers

must behave “reasonably in the light of the circumstances before them,” and any
force used must be “reasonably proportionate to the need for that force, which is
measured by the severity of the crime, the danger of the officer, and the flight of
risk.” Galvez v. Bruce, 552 F.3d 1238, 1243 (11th Cir. 2008) (citations omitted).
Courts should also consider the relationship between the need and amount of force
used and the extent of the injury inflicted. Leslie v. Ingram, 786 F.2d 1533, 1536
11

There are cases where the existence of probable cause by itself seems to defeat battery claims as well, see e.g.,
Sada v. City of Altamonte Springs, 434 F. App’x 845, 851 (11th Cir. 2011), but the Court finds that additional
analysis is necessary to determine whether the force used was reasonable given the circumstances.

16

(11th Cir. 1986). This is an objective inquiry. Mobley v. Palm Beach Cty. Sheriff
Dep’t, 783 F.3d 1347, 1354 (11th Cir. 2015) (citations omitted).
To begin with, the alleged criminal activity that Deputies were investigating
was not severe. See Fla. Stat. § 810.09(2)(a) (trespass is a misdemeanor of the first
degree); Fla. Stat. § 877.03 (disorderly conduct is a misdemeanor of the second
degree).
Notwithstanding the mild nature of the crime alleged and the absence of a
flight risk, Plaintiff was plainly drunk and disputatious. Deputy Redinger stated
that during the encounter Plaintiff was “verbally aggressive” with Derby Lane staff
and paced back and forth. Additionally, on multiple occasions Deputy Redinger
observed Defendant to be in an aggressive stance with clenched fists. The 911 call
and Plaintiff’s state of mind on it affirm this view and belie his own claims that he
was “calm” during the exchange with the Deputies. Dkt. 43-8 at 71-72. Deputy
Redinger “felt there was an imminent issue where he might strike [the security
guard] now. That’s when [Redinger] stepped in and tried to effect an arrest at that
point.”
Taking all supported facts and reasonable inferences in Plaintiff’s favor
demonstrates that Deputy Redinger acted reasonably in his arrest of Plaintiff.
Plaintiff continued to ignore the repeated notices of trespass. Deputy Redinger
ultimately decided to arrest and was met with some resistance (even if it was a
17

natural reaction, see Dkt. 43-6 at 24). Deputy Redinger then seems to have applied
as much force as necessary to subdue Plaintiff and, upon handcuffing Plaintiff, he
immediately ceased the use of force. It is unfortunate that both parties fell to the
asphalt, especially with Deputy Redinger’s body on top of Plaintiff, but it was this
contact with the ground that caused Plaintiff’s injuries. The injuries were also
relatively minor and did not require medical treatment or follow-up after the
hospital visit: Basically Plaintiff got asphalt scrapes and a bad black eye.
There is no support in the summary judgment materials apart from Plaintiff’s
later uncorroborated deposition that Deputy Redinger took Plaintiff to the ground
without first attempting to restrain his hands, kicked him while he was down, or
put him in a chokehold. In fact, Plaintiff’s deposition is materially refuted by his
own testimony at trial: There are discrepancies on whether or to what extent—and
when—he lost consciousness, whether he was choked, whether he jerked his arm
in response to Deputy Redinger grabbing him or was simply taken to the ground,
his reasons for not walking to his car, whether he stayed on the scene after the
warning to explain himself to Deputy Redinger, and, based on the 911 call,
whether he was told to leave.
A party “cannot create a genuine issue of fact sufficient to survive summary
judgment simply by contradicting his or her own previous sworn statement . . .
without explaining the contradiction or attempting to resolve the disparity.”
18

Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999); accord Van. T.
Junkins & Assoc., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984)
(“When a party has given clear answers to unambiguous questions which negate
the existence of any genuine issue of material fact, that party cannot thereafter
create such an issue with an affidavit that merely contradicts, without explanation,
previously given clear testimony.”).
Plaintiff’s attempts to explain these material disparities are unavailing. He
testified in his later deposition that only long after the incident did he conclude that
he had been choked. As for the punching and kicking on the ground, Plaintiff
stated without elaboration that the prosecutor merely “didn’t ask about that. She
wasn’t very specific with her questions.” Dkt. 43-11 at 14. But then he admitted
that his answer was the same with no mention of punching or kicking when
examined by his own counsel at trial. Id. at 15, Dkt. 43-8 at 53.
Plaintiff’s testimony markedly changed from his criminal trial to his
deposition, when questioned by his present civil counsel. Plaintiff’s latter
testimony conflicts with his earlier version and requires that he found a recovered
memory.
The Court is unpersuaded. Deputy Redinger acknowledges that he may have
applied some pressure to Plaintiff’s neck during the takedown and ensuing struggle
and that he administered two palm-heel strikes; Deputy Archer testified she had
19

never seen Deputy Redinger chokehold a suspect; the security guard testified
Deputy Redinger “had to grab [Plaintiff] by his shoulders, about his neck, and they
struggled.”
Plaintiff’s largely undisputed behavior—along with Deputy Redinger’s
response to that behavior—is reminiscent of Draper v. Reynolds, 369 F.3d 1270
(11th Cir. 2004). Detained on a minor traffic violation, the plaintiff in that case
refused at least five orders to retrieve documents, used profanity, “moved around
and paced in agitation,” and yelled at the officer. 369 F.3d at 1277-78. Faced with
the tense circumstances, the officer in Draper, like Redinger, initiated an arrest
without a “verbal arrest command.” Id. Furthermore, the plaintiff was “standing
up, handcuffed, and coherent shortly after” the use of the taser. Id. The United
States Court of Appeals for the Eleventh Circuit upheld summary judgment for the
officer. Id. at 1272-73.
Similarly, in Lewis v. City of W. Palm Beach, 561 F.3d 1288 (11th Cir.
2009), officers “maneuvered [the plaintiff] to the ground,” placed a knee on his
upper back and neck during the handcuffing process, and later restrained his legs
and attached the leg restraints to the handcuffs. 561 F.3d at 1290-92. The appellate
court upheld the application of qualified immunity at summary judgment. Id. at
1292; see also Nolin v. Isbell, 207 F.3d 1253 (11th Cir. 2000) (finding force de
minimis where officers grabbed suspect, shoved him a few feet against a vehicle,
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pushed a knee into his back and his head against the vehicle, and searched his groin
in an uncomfortable manner); Woodruff v. City of Trussville, 434 F. App’x 852,
853, 855 (11th Cir. 2011) (per curiam) (officer punched suspect in the face,
forcefully removed him from his car, and slammed him on the ground); Durruthy
v. Pastor, 351 F.3d 1080, 1094 (11th Cir. 2003) (officer forced suspect to the
ground); Jones v. City of Dothan, 121 F.3d 1456, 1460 (11th Cir. 1997) (per
curiam) (officer “slammed” suspect against a wall and kicked his legs apart).
Even some chokeholds against resisting suspects have been deemed
nonactionable. See e.g., Marantes v. Miami-Dade County, 649 F. App’x 665, 670
(11th Cir. 2016) (officer knocked suspect to the ground and used chokehold);
Gomez v. United States, 601 F. App’x 841, 851 (11th Cir. 2015) (officer grabbed
suspect by neck, choked him, and slammed him against a vehicle before
handcuffing); Post v. City of Fort Lauderdale, 7 F.3d 1552, 1559-60 (11th Cir.
1993) (chokehold of about five seconds).
The above line of cases, along with the instant case, is distinct from another
set where police applied force to completely passive or compliant suspects. See
e.g., Scott v. Battle, 688 F. App’x 674, 679 (11th Cir. 2017); Smith v. Mattox, 127
F.3d 1416 (11th Cir. 1997); Saunders v. Duke, 766 F.3d 1262, 1267 (11th Cir.
2014); Lee v., 284 F.3d 1188; Priester v. City of Riviera Beach, 208 F.3d 919 (11th
Cir. 2000).
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The Court acknowledges some dispute as to the precise nature of the facts.
The Court is equally mindful, however, that the “mere existence of a scintilla of
evidence in support of the plaintiff’s position will be insufficient,” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986), and that “mere conclusory,
uncorroborated allegations by a plaintiff in an affidavit or deposition will not
create an issue of fact for trial sufficient to defeat a well-supported motion for
summary judgment.” Hutchinson v. City of St. Petersburg, No. 8:05-cv-833-T30TGW, 2006 WL 2789010, at *3 (M.D. Fla. Sept. 26, 2006) (citations omitted);
see also Brown v. City of Clewiston, 848 F.2d 1534, 1541 n. 12 (11th Cir. 1988)
(listing cases upheld on summary judgment where courts to some extent analyzed
evidence). Here the prime conflict in the evidence is between Plaintiff on the
witness stand and Plaintiff in the civil deposition chair.
It is no doubt a balancing act for a court to consider whether evidence gives
rise to a dispute at summary judgment, careful on the one hand to avoid intruding
into the purview of the factfinder and on the other to stop cases from proceeding
unnecessarily—or improperly—to trial. But the Court is convinced that given the
materials before it here no reasonable jury could find in favor of Plaintiff.
To summarize, the Deputies’ reasonable behavior and use of force during
the arrest of Plaintiff did not violate his Fourth Amendment rights. In the absence
of a constitutional violation, it is unnecessary to determine whether any such rule
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was clearly established and, as such, the remaining § 1983 claim against the
Deputies fails. Likewise, the assault and battery claims cannot succeed. See City of
Miami v. Sanders, 672 So. 2d 46, 47 (Fla. 3d DCA 1996) (citations omitted)
(officer is liable for battery only where force used during arrest is “clearly
excessive”); Sullivan v. Atl. Fed. Sav. & Loan Ass’n., 454 So. 2d 52, 54 (Fla. 4th
DCA 1984) (“An assault is an intentional, unlawful offer of corporal injury to
another by force.”) (emphasis added).
III.

In the absence of a constitutional violation, Defendant PCSO is not liable
under § 1983.
Plaintiff also brings a § 1983 claim against Sheriff Gualtieri under Monell v.

Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978). Because Plaintiff
sues Sheriff Gualtieri in his official capacity, the claim is effectively against the
PCSO. Penley v. Eslinger, 605 F.3d 843, 854 (11th Cir. 2010). To prevail under
Monell, Plaintiff must show that (1) his constitutional rights were violated, (2) the
municipality had a custom or policy that constituted deliberate indifference to that
constitutional right, and (3) the policy or custom caused the violation. McDowell v.
Brown, 392 F.3d 1283, 1289 (11th Cir. 2004) (citations omitted).
As noted above, Plaintiff suffered no violation of his constitutional rights.
The claim falls short on this basis alone and it is unnecessary to delve into the
materials concerning the PCSO’s policies, including use of force, provided by
Defendants.
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CONCLUSION
The Court GRANTS Defendants’ Motions for Summary Judgment. The
Court DENIES Plaintiff’s Motion for Summary Judgment. The Clerk is ordered to
enter judgment for Defendants and close the case.

DONE AND ORDERED at Tampa, Florida, on October 24, 2018.

/s/ William F. Jung
WILLIAM F. JUNG
UNITED STATES DISTRICT JUDGE

COPIES FURNISHED TO:
Counsel of Record

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