              Case: 18-14867     Date Filed: 09/17/2019    Page: 1 of 14


                                                                [DO NOT PUBLISH]




                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 18-14867
                              Non-Argument Calendar
                            ________________________

                     D.C. Docket No. 8:17-cv-00434-WFJ-SPF


MAT BAYSA,
                                                                   Plaintiff-Appellant,

                                        versus

ROBERT GUALTIERI,
in his official capacity as Sheriff of the Pinellas County Sheriff’s Office,
CHARLES REDINGER,
individually, et al.,

                                                               Defendants-Appellees.

                            ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                          ________________________

                                (September 17, 2019)

Before WILSON, ANDERSON, and HULL, Circuit Judges.

PER CURIAM:
              Case: 18-14867     Date Filed: 09/17/2019   Page: 2 of 14


      Plaintiff-Appellant Mat Baysa (“Baysa”) appeals from the district court’s

grant of summary judgment in favor of Robert Gualtieri (“the Sheriff”), Charles

Redinger (“Redinger”), and Stephanie Archer (“Archer,” and, with Redinger, “the

Deputies”) in this § 1983 action. Baysa alleges that the Deputies violated his

Fourth Amendment rights during his arrest. And he alleges that these violations

were due to policies and practices of their employer, Robert Gualtieri in his official

capacity as sheriff of the Pinellas County Sheriff’s Office. For the reasons given

below, we affirm in part, vacate in part, and remand.

                                           I.

      We assume the parties are familiar with the facts of this case and summarize

them only insofar as necessary to explain our decision. The facts below are

described in the light most favorable to the plaintiff.

      Early morning on June 10, 2013, Baysa was playing cards at Derby Lane

Poker Room in St. Petersburg, Florida. He claims that a security guard at Derby

Lane was closely watching him. He testified that he exited the card room and

walked into the parking lot, before returning and accusing the security guard of

staring at him all night.

      The security guard escorted Baysa outside. He reentered, and the security

guard again ordered him to leave. Baysa and the security guard argued with one




                                           2
              Case: 18-14867    Date Filed: 09/17/2019   Page: 3 of 14


another, as Baysa admits. Derby Lane staff called police to issue a trespass

warning. Baysa admits that he was “told . . . to stay away [and] go outside.”

       Once in the parking lot, Baysa saw movement by his car, and feared he was

being set up for a DUI. He called 911. On the call, audio of which is in the record,

Baysa was noticeably agitated and argumentative. He stated that he felt in danger

from the security guard and requested to be picked up and taken home. He told the

dispatcher that a guard requested that he go home and stay away.

       The Deputies responded to Baysa’s 911 call. Deputy Redinger spoke with

the security guard, who stated that Baysa was “acting in a disorderly fashion” and

that Derby Lane wanted to issue a trespass warning. The security guard repeated

his trespass warning to Baysa in Deputy Redinger’s presence. Baysa testified that

Deputy Redinger restated the guard’s trespass warning, but that Baysa argued

against it.

       Deputy Redinger then walked over and told him they were going to issue a

trespass warning. Deputy Redinger ended the conversation by saying “Don’t come

back here anymore. You’re free to go.” According to Baysa’s testimony at his

criminal trial, Baysa began to walk away from Deputy Redinger. But after he had

taken three or four steps, he was grabbed from behind and fell headfirst into the

pavement. He testified that his neck became twisted and he next remembered

being in Deputy Redinger’s car with his hands in handcuffs.


                                         3
              Case: 18-14867    Date Filed: 09/17/2019    Page: 4 of 14


      During his deposition in this matter, Baysa further testified that while on the

ground, he was punched and kicked all over his body before he lost consciousness,

and that he had been put in a chokehold or headlock.

      Deputy Redinger testified that Baysa was “verbally . . . aggressive” with

Derby Lane personnel. He further stated that Baysa walked towards the security

guard “in an aggressive stance, shoulders back, chest out, bowing his chest up and

you can see clenched fists.” Deputy Redinger “felt there was an immediate issue

where [Baysa] might strike” the guard and stepped in to arrest Baysa.

      Deputy Redinger further testified that he grabbed Baysa’s wrists to restrain

him, at which point Baysa pulled away. Deputy Redinger then pushed Baysa

against the patrol car, but Baysa broke free again. Deputy Redinger effected a

takedown by grabbing around Baysa’s shoulders or neck.

      Deputy Redinger and Baysa fell onto the pavement. Deputy Redinger

testified that he used “palm heel strikes,” or open hands where the “striking area is

the heel of your palm[,] . . . somewhere from [Baysa’s] shoulder to waistline.”

Deputy Redinger used these to pull Baysa’s hands free and handcuff him.

      Baysa was arrested on misdemeanor counts of disorderly conduct in an

establishment and resisting arrest without violence; the State’s Attorney’s Office

amended the former charge to trespass. Baysa was acquitted of both counts.




                                          4
                Case: 18-14867       Date Filed: 09/17/2019       Page: 5 of 14


Baysa then filed a complaint in this matter, alleging multiple constitutional

violations under 42 U.S.C. § 1983. The defendants moved for summary judgment,

which the district court granted. Baysa now appeals.

                                               II.

       We review a district court’s decision to grant a motion for summary

judgment de novo and construe the facts in the light most favorable to the non-

moving party. Jacoby v. Baldwin Cnty., 835 F.3d 1338, 1342 (11th Cir. 2016). A

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).

                                               III.

       Baysa argues that the Deputies lacked probable cause to arrest him and

therefore violated his Fourth Amendment rights. He also argues that the nature of

that arrest was overly violent, and therefore that the Deputies did not act

reasonably during the arrest and violated his Fourth Amendment rights. In

addition, Baysa claims that the Sheriff oversaw a policy or custom of chokeholds

or headlocks among law enforcement in his municipality that caused his injuries. 1


1
 Baysa also brought state law claims of false arrest and imprisonment, battery, and assault
against all three defendants and malicious prosecution against the Deputies. The district court
concluded that the existence of probable cause with respect to Baysa’s § 1983 false arrest claim
barred the state law malicious prosecution and false arrest and imprisonment claims. And it
determined that the assault and battery claims could not succeed because the Deputies’ conduct



                                                5
                 Case: 18-14867        Date Filed: 09/17/2019         Page: 6 of 14


        Baysa’s § 1983 claims require that he prove that the defendants’ conduct

violated a constitutional right and that the challenged conduct was committed

under color of state law. Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016).

Defendants invoke qualified immunity. To overcome that immunity, Baysa must

show that (1) taken in the light most favorable to Baysa, the facts show that the

defendants’ conduct violated a constitutional right, and (2) the right was clearly

established at the time of the defendants’ alleged misconduct. Saucier v. Katz, 533

U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001).

        The district court concluded that the Deputies had probable cause to arrest

Baysa. And it found that the Deputies used a reasonable amount of force during

the arrest. Because it found that no constitutional violation occurred, the district

court also granted summary judgment to the Sheriff on Baysa’s “policy or custom”

claim against him. We address each conclusion in turn.




was not clearly excessive or unlawful, as required under Florida law. Baysa only mentions state
law claims on the first page of his initial brief and his summary of the argument. This is not
enough to raise the issue on appeal, and the state law claims are accordingly abandoned. See
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014). Baysa notes that the
district court relied on the same facts in rejecting Baysa’s § 1983 claims and his state law claims.
This is irrelevant. The district court’s styling of its order, and the identity of facts relevant to the
claims, does not relieve a party on appeal of its obligation to devote discrete sections of its brief
to its claims. See id. at 681-82 (“Abandonment of a claim or issue can also occur when the
passing references to it are made in the ‘statement of the case’ or ‘summary of the argument,’ . . .
[or] when passing references appear in the argument section of an opening brief, particularly
when the references are mere ‘background’ to the appellant’s main arguments or when they are
‘buried’ within those arguments.”).

                                                   6
              Case: 18-14867    Date Filed: 09/17/2019    Page: 7 of 14


   A. False Arrest Claim

      Baysa first claims that his warrantless arrest lacked probable cause and

therefore violated the Fourth Amendment. “A warrantless arrest without probable

cause violates the Fourth Amendment and forms a basis for a section 1983 claim.”

Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir. 1996). Probable cause is an

“absolute bar” to a § 1983 false arrest claim. Rankin v. Evans, 133 F.3d 1425,

1435 (11th Cir. 1998). Probable cause to arrest exists when “law enforcement

officials have facts and circumstances within their knowledge sufficient to warrant

a reasonable belief that the suspect had committed or was committing a crime.”

United States v. Gonzales, 969 F.2d 999, 1002 (11th Cir. 1992). This does not

require an actual showing of criminal activity, but “only a probability or substantial

chance of criminal activity.” Illinois v. Gates, 462 U.S. 213, 243 n.13, 103 S. Ct.

2317, 2335 (1983). And it “does not require overwhelmingly convincing evidence,

but only reasonably trustworthy information.” Ortega, 85 F.3d at 1525 (internal

citations and quotations omitted).

      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, 125 S. Ct. 588, 594 (2004). It is enough that

probable cause exists to arrest for any crime. Id. Therefore, while the Deputies

arrested Baysa for disorderly conduct in an establishment and resisting arrest


                                          7
              Case: 18-14867    Date Filed: 09/17/2019    Page: 8 of 14


without violence, probable cause for an arrest for trespass would be enough to bar

Baysa’s § 1983 false arrest claim. The district court did not err in determining that

such probable cause existed.

      Florida law defines a trespasser as 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.” Fla. Stat. § 810.09(1)(a). This notice must

be actually and personally communicated to the offender by the property’s owner

or an “authorized person.” Fla. Stat. § 810.09(2)(b); see Smith v. State, 778 So.2d

329, 331 (Fla. 2d DCA 2000). Thus, the Deputies had probable cause if they had

knowledge of facts and circumstances that could give rise to a reasonable belief

that Derby Lane’s owner or an authorized person had communicated notice to

Baysa not to remain on the premises, and that he had nonetheless remained.

      There is ample evidence in the record to support a finding that the Deputies

had probable cause to arrest Baysa for trespass. Derby Lane’s security guard told

Baysa to leave several times, which Baysa stated in his 911 call and admitted in his

deposition. The Deputies spoke with Derby Lane’s security guard, who stated that

Derby Lane wanted to issue a trespass warning. This warning was repeated to

Baysa in the Deputies’ presence. Baysa admitted in his deposition that he

remained to try “to make [his] point” and “to make an argument.”


                                          8
              Case: 18-14867     Date Filed: 09/17/2019    Page: 9 of 14


      Bearing in mind that probable cause is a “common sense” inquiry, Marx v.

Gumbinner, 905 F.2d 1503, 1506 (11th Cir. 1990) (internal citations and

quotations omitted), we conclude that the above circumstances are sufficient to

support the district court’s conclusion that the Deputies had probable cause to

arrest Baysa for trespass. The Deputies were “entitled to rely on allegations of an

informant and corroborating evidence,” and thus could obtain probable cause from

Derby Lane’s security guard’s statements. See Case v. Eslinger, 555 F.3d 1317,

1327 (11th Cir. 2009); see also Rankin, 133 F.3d at 1441 (holding that an officer

can rely on a victim’s criminal complaint as support for probable cause). The

Deputies also observed Baysa’s actions, including his remaining on the premises

after interacting with the security guard. These circumstances are enough to find

probable cause to arrest for trespass. We therefore affirm the district court on

Baysa’s § 1983 false arrest claim.

   B. Excessive Force Claim

      Baysa next argues that the Deputies used excessive force during his arrest,

thereby violating the Fourth Amendment. To determine whether officers “behaved

reasonably in the light of the circumstances before [them],” courts must evaluate

whether the force used was “reasonably proportionate to the need for that force” by

analyzing “the severity of the crime, the danger to the officer, and the risk of




                                          9
             Case: 18-14867     Date Filed: 09/17/2019    Page: 10 of 14


flight.” Galvez v. Bruce, 552 F.3d 1238, 1243 (11th Cir. 2008) (internal citations

and quotations omitted).

      The district court, after sifting through the factual record, concluded that the

Deputies acted reasonably when arresting Baysa. We conclude, however, that the

district court erred in discounting portions of Baysa’s testimony and therefore

failed to apply the correct summary judgment standard.

      The district court relied upon Van T. Junkins & Assoc., Inc. v. U.S. Indus.,

Inc. in disregarding certain disparities between Baysa’s testimony at his criminal

trial and his testimony from his deposition in this action. See 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.”). The district court cited

discrepancies regarding “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.” Of particular relevance, the district court disregarded Baysa’s allegations




                                         10
             Case: 18-14867      Date Filed: 09/17/2019    Page: 11 of 14


that he had been choked by Deputy Redinger, and whether he had been punched by

Deputy Redinger while on the ground.

      In the particular circumstances of this case, we conclude, however, that it

was improper to rely on discrepancies to disregard a party’s sworn testimony when

that party’s prior testimony occurred in a different case. See Reese v. Herbert, 527

F.3d 1253, 1270 n.28 (11th Cir. 2008) (“[W]e would be reluctant to disregard an

affidavit of a witness, whether or not a party in the case, on the ground that it is

inconsistent with testimony the witness gave in another proceeding.”). Our Court

appears to have applied the Van T. Junkins rule only when an affidavit or

declaration contradicts sworn deposition testimony. See, e.g., Allen v. Bd. of Pub.

Educ. for Bibb Cnty., 495 F.3d 1306, 1316-17 (11th Cir. 2007); Rollins v.

TechSouth, Inc., 833 F.2d 1525, 1530 (11th Cir. 1987); Tippens v. Celotex Corp.,

805 F.2d 949, 954 (11th Cir. 1986); Van T. Junkins, 736 F.2d at 656-57. We have

seen no instance in which a litigant’s testimony from another judicial proceeding

was contradicted by later deposition testimony and the later was subsequently

disregarded, and the Deputies cite to none.

      In his criminal trial, Baysa was not trying to impose liability on the Deputies

but was instead trying to avoid being found guilty. He therefore did not have every

incentive to flesh out the narrative of his arrest with details that might be useful in

a civil trial against the Deputies. He testified that he was not “real clear what


                                          11
             Case: 18-14867     Date Filed: 09/17/2019   Page: 12 of 14


happened after [he] felt his neck getting twisted.” In addition, at his deposition

Baysa testified that he was not “real clear” what happened after his neck was

twisted because he was “down and . . . already grasping for air.” Baysa’s medical

records also state that he told hospital personnel that he was punched. Baysa’s

consistent reference to his lack of clarity, and the contemporaneous record of

Baysa telling hospital personnel that he had been punched, leads us to conclude

that the inconsistencies between Baysa’s trial testimony and his deposition

testimony are “more appropriately considered ‘variations of testimony’ or

‘instances of failed memory’ going to the weight and credibility of the evidence, as

opposed to falsehoods rendering the [deposition testimony] a disregardable

‘sham.’” Croom v. Balkwill, 645 F.3d 1240, 1253 n.18 (11th Cir. 2011).

      Of course, Baysa’s deposition testimony, once fully considered, may not be

enough to avoid summary judgment in the defendants’ favor. Even if it is, it “may

not credibly withstand cross-examination,” but “weighing the contradictory

statements along with the explanations for those contradictions are judgments of

credibility. Issues of credibility and the weight afforded to certain evidence are

determinations appropriately made by a finder of fact and not a court deciding

summary judgment.” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1240

n.7 (11th Cir. 2003).




                                         12
                Case: 18-14867        Date Filed: 09/17/2019        Page: 13 of 14


       We therefore vacate the district court’s ruling granting summary judgment to

the Deputies on Baysa’s § 1983 excessive force argument and remand for

reconsideration of Baysa’s deposition testimony through the proper lens. 2

    C. Claim Against Sheriff’s Office

       Finally, Baysa brings a § 1983 claim against the Sheriff under Monell v.

Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 98 S. Ct. 2018 (1978).

Baysa’s claim is against the Sheriff in his official capacity, which is functionally a

suit against the municipality’s Sheriff’s Office as a whole. See Abusaid v.

Hillsborough Cnty. Bd. of Cnty. Comm’rs, 405 F.3d 1298, 1302 n.3 (11th Cir.

2005). To succeed in a § 1983 claim against a municipality, Baysa must show “(1)

that his constitutional rights were violated; (2) that the municipality had a custom

or policy that constituted deliberate indifference to that constitutional right; and (3)

that the policy or custom caused the violation.” McDowell v. Brown, 392 F.3d

1283, 1289 (11th Cir. 2004).

       The district court concluded that because Baysa could not show that his

constitutional rights were violated, his Monell claim must fail. Because we vacate

the district court’s conclusion that Baysa’s constitutional rights were not violated,



2
 We express no opinion on whether, after properly crediting Baysa’s deposition testimony, he
can still demonstrate genuine issues of material fact necessary to survive the defendants’
summary judgment motion. We also express no opinion on whether, if the defendants did
violate one of Baysa’s constitutional rights, that right was clearly established at the time of the
misconduct. We leave it to the district court to determine these issues in the first instance.

                                                 13
              Case: 18-14867      Date Filed: 09/17/2019   Page: 14 of 14


we vacate the grant of summary judgment to the extent it rested on that conclusion.

We leave remaining arguments on the issue for the district court to consider in the

first instance.

                                          IV.

       For the foregoing reasons, we affirm the district court’s order to the extent it

granted summary judgment to the defendants on Baysa’s false arrest claim, vacate

it to the extent it granted summary judgment to the defendants on Baysa’s

excessive force claim and Monell claim, and remand for further proceedings not

inconsistent with this opinion.

       AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




                                           14
