          Case: 18-10842   Date Filed: 07/03/2019   Page: 1 of 14


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-10842
                        Non-Argument Calendar
                      ________________________

                 D.C. Docket No. 1:16-cv-21874-KMM



CUTHBERT HAREWOOD,

                                                         Plaintiff - Appellant,

                                 versus

MIAMI-DADE COUNTY,
JOHN ALEXANDER,

                                                      Defendants - Appellees.

                      ________________________

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

                              (July 3, 2019)

Before MARCUS, ROSENBAUM and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Cuthbert Harewood appeals the district court’s order granting John

Alexander summary judgment on judicial estoppel grounds. Harewood brought

this action against Officer Alexander and Miami-Dade County, alleging claims

under 42 U.S.C. § 1983 for excessive force, false arrest, and retaliation, arising

from Alexander’s deployment of his taser to subdue Harewood. The district court

ruled that the equitable doctrine of judicial estoppel barred Harewood’s claims

based on his failure to disclose them as assets in Chapter 13 bankruptcy

proceedings filed prior to the filing of this lawsuit. The district court found that by

omitting the claims when he amended his bankruptcy disclosures, Harewood

intended to make a mockery of the judicial system. On appeal, Harewood argues

that in making this finding the district court erred by failing to consider facts in the

record and by identifying inconsistencies in the record where none existed. After

careful review, we conclude that the district court committed no abuse of

discretion. We therefore affirm.

                               I.      BACKGROUND

      In July 2013, Harewood was standing near real property he owned when his

common-law wife, Myrlie Coleman, arrived in her vehicle. Harewood approached

the driver’s side window and began speaking with Coleman. Alexander, an officer

in the Miami-Dade Police Department, then pulled behind the vehicle and

instructed Harewood to step away. Harewood retreated as instructed while he and


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Alexander exchanged words. Alexander then forced Harewood to the ground and

tased him three times.

       Harewood sued Alexander and Miami-Dade County in Florida state court in

April 2015. The operative complaint, Harewood’s second amended complaint,

alleged several claims under § 1983 based on Alexander’s allegedly unjustified and

excessive taser use. Miami-Dade removed the action to federal district court and

then filed a motion to dismiss. The district court granted the motion and dismissed

without prejudice all claims brought against Miami-Dade County. 1 Alexander

answered the complaint, and the claims against him proceeded to discovery.

       After discovery, Alexander moved for summary judgment on the sole

ground that judicial estoppel barred Harewood’s claims based on Harewood’s

failure to disclose them as contingent assets in two bankruptcy proceedings filed

before Harewood’s § 1983 lawsuit was filed. Harewood filed a voluntary petition

for Chapter 13 bankruptcy in January 2013 and another one in 2014. The first

petition was filed before the tasing incident; the second was filed after. When

asked in each petition under penalty of perjury in “Schedule B-Personal Property”

to identify any “contingent and unliquidated claims,” he answered “none.”

Schedule B - Personal Property, In re Harewood, No. 14-28291-AJC (Bankr. S.D.



       1
       Harewood does not appeal the district court’s dismissal of the claims brought against
Miami-Dade.
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Fla. Sept. 11, 2014), ECF No. 15; Schedule B - Personal Property, In re Harewood,

No. 13-10890-AJC (Bankr. S.D. Fla. May 14, 2013), ECF No. 17. When he filed

amended schedules in each proceeding in August 2013 and March 2015,

respectively, he similarly failed to disclose the § 1983 claims. Schedule B -

Personal Property, In re Harewood, No. 13-10890-AJC (Bankr. S.D. Fla. August

15, 2013), ECF No. 69; see Amended Summary of Schedules, In re Harewood,

No. 14-28291-AJC (Bankr. S.D. Fla. Mar. 11, 2015), ECF No. 45 (omitting an

amended Schedule B). Harewood did, however, disclose in his bankruptcy filings

several lawsuits against him that sought to collect money judgments against him.

Harewood’s 2013 bankruptcy was dismissed in November 2013. His 2014

bankruptcy was confirmed in April 2015 but then dismissed in November 2015.

      In response to Alexander’s summary judgment motion, Harewood argued

that he had informed his bankruptcy attorney, Alberto Cardet, of his claims against

Alexander and Miami-Dade. Harewood testified by affidavit that, by late 2014,

“Cardet had . . . assured [him] that [his] potential civil rights lawsuit . . . had no

bearing on the bankruptcy case.” Doc. 89-3 at 5.2 Along with his response,

Harewood filed a motion pursuant to Federal Rule of Civil Procedure 56(d),

requesting that the district court defer its ruling on Alexander’s summary judgment

motion until after Cardet could be deposed. In support of the Rule 56(d) motion,


      2
          “Doc #” refers to the numbered entry on the district court’s docket.
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Harewood’s present attorney, Hilton Napoleon, II, filed an affidavit describing

Napoleon’s efforts to secure an affidavit from Cardet and a conversation between

the two attorneys. As relevant here, Napoleon testified that Cardet told him that

Harewood had informed Cardet about the lawsuit but Cardet had declined to

amend the bankruptcy disclosures. According to Napoleon, Cardet said he had

believed at the time that Harewood had no need to disclose the § 1983 claims

because Harewood’s bankruptcy was a Chapter 13, the bankruptcy plan required

Harewood to pay his creditors 100% of what he owed them, and there were

sufficient assets to cover the liabilities.

       The district court agreed with Alexander and ruled that judicial estoppel

barred Harewood’s claims. Based on its judicial estoppel ruling, the district court

granted Alexander summary judgment. The court denied as moot Harewood’s

Rule 56(d) motion.

       This is Harewood’s appeal.

                         II.    STANDARDS OF REVIEW

       This Court reviews a district court’s application of judicial estoppel for

abuse of discretion and its factual findings for clear error. Robinson v. Tyson

Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010). A district court may abuse its

discretion in three ways: (1) by failing to consider a relevant factor to which it

should have afforded significant weight, (2) by considering an irrelevant or


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improper factor and giving it significant weight, or (3) by committing a “clear error

of judgment” in weighing the proper factors. Ameritas Variable Life Ins. Co. v.

Roach, 411 F.3d 1328, 1330 (11th Cir. 2005). A district court’s factual finding is

clearly erroneous when the evidentiary record, viewed in its entirety, leaves the

reviewing court with “a definite and firm conviction that a mistake has been

committed,” even though the record may contain evidence to support the finding.

Robinson, 595 F.3d at 1275.

                                III.   DISCUSSION

      Harewood appeals the district court’s ruling that judicial estoppel barred his

claims against Alexander. Judicial estoppel is an equitable doctrine “intended to

prevent the perversion of the judicial process and protect its integrity by

prohibiting parties from deliberately changing positions according to the

exigencies of the moment.” Slater v. U.S. Steel Corp., 871 F.3d 1174, 1180 (11th

Cir. 2017) (en banc) (alterations adopted) (internal quotation marks omitted). A

district court should not apply judicial estoppel “when the inconsistent positions

were the result of inadvertence or mistake because judicial estoppel looks towards

cold manipulation and not an unthinking or confused blunder.” Id. at 1181

(alteration adopted) (internal quotation marks omitted).

      This circuit applies a two-part test to guide district courts in exercising their

discretion to apply judicial estoppel: “whether (1) the party took an inconsistent


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position under oath in a separate proceeding, and (2) these inconsistent positions

were calculated to make a mockery of the judicial system.” Id. (internal quotation

marks omitted). The first prong is satisfied when a debtor has “fail[ed] to list a

pending civil claim as an asset in a bankruptcy proceeding.” Weakley v. Eagle

Logistics, 894 F.3d 1244, 1245-46 (11th Cir. 2018), cert. denied, 139 S. Ct. 836

(2019). This prong may also be satisfied when a debtor has failed to amend her

bankruptcy filings to disclose claims that arose while the bankruptcy remained

pending. See Ajaka v. Brooksamerica Mortg. Corp., 453 F.3d 1339, 1344 (11th

Cir. 2006) (explaining that a debtor’s duty to disclose extends to all potential

assets). Only the test’s second prong is at issue in this appeal because Harewood

does not challenge the district court’s determination that he took an inconsistent

position under oath in a separate proceeding.

      Regarding the second prong, in Slater v. U.S. Steel Corp., we articulated

several factors that a court may consider when, as here, it is “determining whether

a plaintiff who failed to disclose a civil lawsuit in bankruptcy filings intended to

make a mockery of the judicial system.” 871 F.3d at 1176-77. These factors

include but are not limited to the following:

      the plaintiff’s level of sophistication, whether and under what
      circumstances the plaintiff corrected the disclosures, whether the
      plaintiff told his bankruptcy attorney about the civil claims before
      filing the bankruptcy disclosures, whether the trustee or creditors were
      aware of the civil lawsuit or claims before the plaintiff amended the
      disclosures, whether the plaintiff identified other lawsuits to which he
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      was party, and any findings or actions by the bankruptcy court after
      the omission was discovered.

Id. at 1185 & n.9. In applying these factors, the district court is not required to

accept as true the plaintiff’s own denial of his intent to make a mockery of the

judicial system. Id. at 1186 n.12. The court must “consider the entire record,”

Weakley, 894 F.3d at 1247, and may infer from that record the party’s intent,

Robinson, 595 F.3d at 1275. Such an inference “is considered a factual finding by

the court and held to a clearly erroneous standard.” Id.

      Here, the district court considered at least three Slater factors: (1)

Harewood’s level of sophistication, (2) whether he told his bankruptcy attorney

about the civil claims before filing or amending the bankruptcy disclosures, and (3)

whether he identified in the bankruptcy proceeding other lawsuits to which he was

a party. As to the first factor, the district court determined that Harewood’s

testimony about his level of sophistication was inconsistent. The court focused its

analysis of Harewood’s sophistication on his role in operating his and Coleman’s

real estate business, which rented properties owned by the couple to residential and

commercial tenants. The court explained that, on the one hand, Harewood

appeared to be sophisticated based on his deposition testimony explaining the

methods he used to purchase the various properties, but, on the other hand, he did

not appear to be sophisticated based on his assertion that Coleman managed their

real estate portfolio and he performed only trivial maintenance on the properties.
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The district court determined that, “[a]lthough the record does support

[Harewood]’s contention that he was not involved in all aspects of managing the

properties he owns, [his] testimony on the matter does not support his argument

that he only performed trivial maintenance on the properties.” Doc. 112 at 7.

      Applying the second factor, the district court identified inconsistencies in

Harewood’s testimony about whether he told Cardet, his bankruptcy attorney,

about his claims against Alexander and Miami-Dade. Specifically, the court found

that two statements in Harewood’s testimony were inconsistent: (1) his statement

that Cardet never explained that his claims against Alexander and Miami-Dade

were “contingent, unliquidated” claims subject to disclosure on Schedule B, and

(2) his statement that he told Cardet about the claims. The court explained that it

therefore gave little weight to Harewood’s testimony. The court did not discuss

Napoleon’s affidavit testimony on this issue.

      On the third factor, the district court found that in the 2013 and 2014

bankruptcy proceedings Harewood had identified several other civil lawsuits

against him. The court further found that Harewood understood his ongoing

obligation to amend the bankruptcy disclosures, as evidenced by the fact that he

once amended them to disclose yet another lawsuit in which he was a defendant.

According to the district court, “[o]ne commonality shared between the lawsuits

[Harewood] disclosed in the bankruptcy proceedings is that they dealt with [his]


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liabilities—not assets.” Doc. 112 at 9. The district court explained that “[t]he

conclusions drawn from these facts weigh[ed] heavily in favor of judicial

estoppel.” Id.

      Based on its findings on these factors, the district court determined that

judicial estoppel was appropriate because Harewood “intend[ed] to make a

mockery of the judicial system by attempting to shield potential assets from

bankruptcy proceedings, making inconsistent statements in th[e district] court and

the bankruptcy court, and . . . feigning ignorance and attempting to lay blame on

his bankruptcy counsel.” Id. at 9-10.

      Harewood argues that the district court erred by: (a) failing to consider

record evidence militating against the conclusion that he intended to make a

mockery of the judicial system, including Napoleon’s affidavit testimony that

Cardet told Napoleon that Harewood informed Cardet of the potential lawsuit

against Alexander and Miami-Dade but Cardet made the decision not to disclose

the claims, and (b) finding inconsistencies and conflicts in the record where none

existed. Alexander responds that the district court committed no abuse of

discretion because it correctly applied the relevant factors and did not clearly err in

its factual findings. We agree with Alexander that Harewood has failed to show

that the district court’s ruling was an abuse of discretion. We explain why by

addressing each of Harewood’s arguments in turn below.


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A.     Harewood Has Not Shown that the District Court Failed to Consider
       the Entire Record.

       Harewood argues that the district court committed reversible error by failing

to consider several facts supported by record evidence, which, if credited, would

have rebutted the inference that he intended to make a mockery of the judicial

system. 3 He argues that the district court failed to consider these facts because its

order failed to explicitly mention them. We disagree. It has long been the law of

this circuit that “‘[i]n the absence of some affirmative indication to the contrary,

we assume all courts base rulings upon a review of the entire record.’” Haynes v.

McCalla Raymer, LLC, 793 F.3d 1246, 1249 (11th Cir. 2015) (quoting Funchess v.

Wainwright, 772 F.2d 683, 694 (11th Cir. 1985)). Harewood has not raised in his

brief any indication that the district court failed to consider the entire record, other

than the court’s silence as to certain evidentiary materials. This is not enough to

overturn our assumption.




       3
           Specifically, Harewood argues that the following facts showed that he was
unsophisticated: during a 2011 bankruptcy where he proceeded pro se, he (a) failed to provide
all required documents, (b) mistakenly referred to a 2009 civil action to which he had been a
party as a bankruptcy case, (c) filed grammatically incorrect motions, and (d) filed motions
lacking his return address. Harewood further argues that the following facts showed that he had
no intent to make a mockery of the judicial system: (a) during his 2014 bankruptcy, he listed
liabilities worth hundreds of thousands of dollars less than what he had disclosed in the 2013
bankruptcy and amended his disclosures to add liabilities that he failed to initially disclose; and
(b) he unsuccessfully attempted to contact his bankruptcy attorney and the bankruptcy trustee
shortly after learning that he omitted the § 1983 claims from his bankruptcy disclosures.
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       Harewood places heavy emphasis on what he characterizes as the district

court’s failure to consider the Napoleon affidavit, but he has abandoned any

argument for reversal based on that evidence. Napoleon’s affidavit testimony

describing Cardet’s statements to Napoleon amounts to hearsay because Harewood

sought to prove the truthfulness of the matters Cardet described in those

statements. Fed. R. Evid. 801(c). “[A] district court may consider a hearsay

statement in passing on a motion for summary judgment [only] if the statement

could be reduced to admissible evidence at trial or reduced to an admissible form.”

Jones v. UPS Ground Freight, 683 F.3d 1283, 1293-94 (11th Cir. 2012) (internal

quotation marks omitted). Thus, a court may consider on summary judgment

evidence in the form of inadmissible hearsay so long as, for example, the declarant

is available to testify at trial directly about the matter at issue. Id. at 1294. Here,

Harewood has abandoned any argument for reversal based on the court’s failure to

consider the Napoleon affidavit because he has failed to explain how Napoleon’s

hearsay statement could be reduced to an admissible form. Access Now, Inc. v. Sw.

Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“[A] legal claim or argument

that has not been briefed before the court is deemed abandoned and its merits will

not be addressed.”). 4


       4
         We note that there is reason to doubt Cardet’s willingness to testify at trial: Harewood’s
Rule 56(d) motion sought to delay the district court’s summary judgment ruling based on
Cardet’s unwillingness to sign an affidavit corroborating Napoleon’s testimony.

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B.     Harewood Has Failed to Show Clear Error.

       Harewood argues that the district court erred in two respects in determining

that his evidence was inconsistent. First, he argues that his testimony was not

inconsistent about his role in managing the real estate properties. He further

contends that other evidence, specifically Coleman’s testimony, corroborates his

account. Second, he asserts that, contrary to the district court’s finding, his

testimony was consistent about whether he disclosed the § 1983 lawsuit to Cardet.

       By arguing that the district court erroneously identified evidentiary

inconsistencies, Harewood appears to argue that the district court clearly erred in

finding that he intended to make a mockery of the judicial system because

evidence regarding his role in the real estate business and whether he told Cardet

about the § 1983 lawsuit contradicts that finding. He relies on three pieces of

evidence: (1) Coleman’s deposition testimony that she managed the real estate

business; (2) Harewood’s deposition testimony that he performed only trivial

maintenance on the properties; and (3) Harewood’s affidavit testimony that he told

Cardet about the § 1983 lawsuit, but Cardet advised against disclosure. We cannot

conclude based on this evidence that the district court clearly erred in finding that

Harewood intended to make a mockery of the judicial system. The court was free




       Harewood raises no argument regarding the district court’s failure to rule on his Rule
56(d) motion before granting summary judgment. We therefore do not address this issue.
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to disregard Harewood’s self-serving testimony in its entirety. Weakley, 894 F.3d

at 1246.

      Moreover, although the record does contain evidence that Coleman rather

than Harewood bore responsibility for managing the real estate business, the record

also contains evidence that Harewood did more than perform trivial maintenance

on the properties. Because the evidence of Harewood’s role in the business

permitted two distinct inferences about Harewood’s sophistication, there can be no

clear error. See Whatley v. Smith, 898 F.3d 1072, 1083 (11th Cir. 2018) (“Where

there are two permissible views of the evidence, the district court’s choice of one

of those views cannot be clearly erroneous.” (internal quotation marks omitted)).

                              IV.    CONCLUSION

      We affirm the district court’s order granting Alexander’s motion for

summary judgment.

      AFFIRMED.




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