*4 COX, Before TJOFLAT and Circuit KORMAN,* Judges, Judge. District * Korman, York, sitting by designation. Edward R. United States Honorable Judge for the Eastern District of New District
TJOFLAT, partygoer began making female a commo- Judge: Circuit yelling tion inside the club. She was of excessive This case involves claims complained partygoer that a male had as- police local officers under force In attempt saulted her. to assist corre- § and the officers’ U.S.C. promoter, Maurice escorted the female immunity. qualified sponding assertion club, partygoer out of the where he knew summary judgment moved for The officers for the police two officers court, in the district based on this defense (the “City”) Aventura Jason —Defendant They their motion. and the court denied and a Williams non-defendant officer— court. unfortu- appealed then to this We partygoer were stationed. The female nately found ourselves unable to decide the Maurice, exited with but was willingly case, a limited remand to the and issued screaming “hysterically,” according — clarify It has opinion. district court to its alleged Maurice—about the assault. so, position are now in a done partygoer approached The female render a decision. officers, conflict, screaming. Reports still *5 I. appears partygoer but it that the female (or charged menacing made some other A. gesture) toward and the non-de- Williams sequence The initial of events is not in In response, fendant officer. the non-de- 23, 2003, dispute. August material On party- fendant officer arrested the female (the Cindy Fils and Nemours Maurice goer, process physically throwing the “Plaintiffs”) party together attended a at ground.1 her to the A friend of the female (the “club”) Broadway Billiards in Aventu- partygoer took issue with this treatment ra, party’s Florida. Maurice knew the and advanced toward the After officers. promoter. Although the record shows instructing stop the friend to moving—and promoter pre- that Maurice the assisted seeing ignored that instruction of the —one party logistics, clothing Maurice’s did not officers shot the friend with his taser.2 par- that he involved with the was suggest backup. Shortly, The officers called for ty any capacity. official four more officers—Defendants Sean Ber- Burns, Jeffrey Harvey
The Plaintiffs at the gert, Arango, arrived club some- Carlantone, midnight time after and remained at Charles Christopher Gor- Williams, party (collectively, along without incident for a hours. anitis few with “Defendants”) peace This relative was a at the disturbed when scene.3 —arrived "taser,” Marks, reports 1. While conflict as to how the female term see No. 08-CV- Reiff partygoer incapacitated, this issue has no 2011 WL at *2 n. *2 n. 23 bearing on the outcome this case. (E.D.Pa. 23, 2011). Feb. type non-deadly weapon 2. Police also use second of taser that A "taser” is a common- ly probes suspect carried law enforcement. The taser does not shoot into the from a Rather, suspect by administers an electric shock to physi- distance. this taser must make shooting probes suspect's two small into the suspect's body. cal contact with the We refer body. probes firing connected to the are taser,” any to this taser as a "contact and to fired, probes via mechanism wires. Once application weapon this as a "contact lodge suspect’s under the skin administer tase.” type permits an electric shock. This of taser incapacitate suspect the officer to from a suggests 3.The record more officers were on type modest distance. We refer to this scene; many reports suggest some as as say taser when we that someone was "tased.” eventually ten officers were outside the club. explanation origin aFor useful of the point It at this that the Plaintiffs’ and around to find several feet away diverge. him, the Defendants’ versions of events from his Believing with taser drawn. vary wildly Descriptions of the scene de- a gun, taser be Maurice claims that storyteller. Maurice and pending on step he raised his hands and took a back- Fils describe scene outside the club as ward toward the club’s entrance. Under “calm,” many though people talking events, Maurice’s version of neither Ber- arrests, roughly about the two with fifteen gert nor officer instructed him to dis- twenty people outside the club. The perse, and he any menacing did make witness, Nerlange Defendants and Ci- gestures Bergert. toward neus, the scene as far more chaot- describe Maurice, At point, according Ber- ic, and estimate the crowd to have reached Maurice, gert causing fired his taser at forty-five people. toup probes lodge taser’s in his torso and to release an electric shock. Maurice did not fall down after this first shock. He claims start first with Maurice’s version of We up, that his knees locked and he stood his encounter the Defendants. Fol- “frozen.”5 Williams’s sworn declaration arrests,4 lowing the two Maurice and Fils suggests that he observed this encounter.6 to leave. sought decided Maurice first out Maurice received a second shock when friend, promoter, standing his who was probes Williams fired his taser into Mau- entrance to the Maurice and club. shock, rice’s torso.7 After this second minutes, promoter spoke for a few Maurice fell to the ground. He claims that facing parking with Maurice’s back lot *6 he any attempts did not resist officer’s where the arrests had During occurred. ground, handcuff him. Once on the how- conversation, this Maurice what stated —in ever, Bergert Maurice claims that put his he characterized as a normal tone of knees on Maurice’s applied back and “they’re overreacting, moth- voice— neck, contact tase to the back of his overreacting.” erfuckers are It is safe to “grinding” saying “you the taser and infer that these “motherfuckers” were the motherfucker, you police making the two Maurice motherfucker.” He arrests. him was then say, away then heard voice behind “what handcuffed and led from said, you motherfucker?” He turned the club. appears
4. There to have been a third arrest of Williams observed the encounter as Maurice person another associated with the female described it. partygoer. The record is not clear whether happened this before or after the incident disagreement 7.There is some in the record Maurice and between the Defendants. about when Williams fired his taser at Mau- deposition rice. Cineus’s at times asserts that implies characterization This that he did not already ground Maurice was down on any threatening gestures any make officer disagree- when Williams fired his taser. This Bergert after tased him. ment is material. deposition 6. Williams’s affidavit states that he "observed Fils also stated in her that Mau- struggling Bergert,” “yelling” with Officer rice was at the after [Maurice] officers he was tased, being "[e]ven and that after Mr. Mau- tased. It is unclear if that occurred before him, struggle rice was still able to with Officer Williams tased after he fell to the Bergert.” quotes suggest ground, These that Williams or after he was handcuffed. Maurice yell police. observed Maurice’s initial encounter with asserts that he did not at the Therefore, Bergert: "struggling,” reviewing light as he described it. the evidence in the Plaintiffs, accept light presume Because we must the facts in the most favorable to the Maurice, yelling most favorable to we must infer that that Maurice was not at the officers. however, the crowd became is that substantially puted, provide Defendants arrest. Fils agitated after Maurice’s more of the events surround- account different the fifteen- that several members of stated re- Bergert’s police Maurice’s arrest. ing shouting police, at the person crowd were Maurice approached that he port states being she one of them. “yelling attempting and he was because that, you by yelling ‘fuck incite a crowd deposition, was According to "her Fils ” as- Bergert’s report cops right.’ ain’t during from Maurice standing several feet action, combined with the that this serts agrees Fils tasering his and arrest. crowd, twenty-to-thirty-person caused that, Maurice was on the Defendants while that he security Bergert concern. claims Bergert making ground, to leave the area. then ordered Maurice arrest, Bergert, with Fils stood behind yelled Maurice refused and more obsceni- to Fils. As Maurice hit the Bergert’s back Maurice that Bergert, ties at who then told tell- began yelling Bergert, Fils ground, Ber- According under arrest. he was that Maurice go him to let Maurice instead comply, Maurice did not gert, anything wrong. This verbal did not do against him. It fighting “took a stance” thirty for approximately incident lasted Bergert fired his point was at this seconds. Defen-
taser into Maurice’s chest. The During yelling, her Fils admits that she continued to dants claim Maurice Bergert’s back. step took a forward toward this struggle “swinging his arms”—after — asserts, however, that she never made She assisted Ber- tasing, initial Williams contact with other physical firing at Maurice. Even gert by his taser step officer. Sometime after —the Bergert claims that Mau- ground, on the step occurred remains precise moment this arrest, continued to resist at which rice ground unclear —Fils was knocked to taser. point applied he his contact she by Burns. Knocked unconscious when if ground, hit the Fils does not remember provides yet The witness Cineus a third Bergert applied any force to her. She was version of these events. She claims that parking lot. then arrested and led from dispersal several orders to Bergert issued *7 agreed that Maurice did not Maurice. She a present The Defendants different ver- orders, obey that Maurice those but stated claim that They sion of Fils’s arrest. Fils obey could not them because the entrance Bergert from after jumped on behind blocked, depriving to the club was thus Fils then re- Maurice had been subdued. path away parking him from the of his one Bergert in the head. The peatedly struck Cineus, According lot. to Maurice was not reports sug- Defendants’ statements and responded Bergert’s orders violent and to gest that administered contact “Wait, your I’m saying, wait. on side. chest, upper which tase Fils’s enabled Wait, listen, you guys. I’m with listen.” ground bring Burns to her initial Bergert’s tasing, After Cineus de- make the arrest. “fighting,” only Maurice as but in scribes Again, provided the witness Cineus trying that he “still to hold
the sense was slightly different version of events. She himself.” that, agreed following tasing, Maurice’s yelling get at the officers to off of
Fils Maurice, that Fils advanced toward state, ground Maurice on the and under how- Bergert’s With back. Cineus did not arrest, ever, jumped the events of Fils’s encounter with that Fils back. Instead, only physical Fils made contact disputed. the Defendants are also Undis- attempted police to that chief Thomas Ribel and the the officers when she with City § be liable under way into the “little huddle” should 1983 for her push properly failure to and train had formed around Maurice. screen new the officers police hires. Counts XXI and XXII al- then that the officers reacted It was leged police that all six officers were liable Fils. prosecution malicious for under Florida charged disorderly with Maurice was XXIII and alleged law. Counts XXIV without force. resisting conduct and arrest battery against state law claims the six dropped charges against The State officers.9 fine, agreed pay after he Maurice classes, management anger enroll The Defendants filed motions sum- community service. Fils was perform mary judgment September 2008 under conduct, disorderly resisting charged Federal Rule of Procedure argu- Civil force, battery of a law arrest with ing, among things, they other Fils’s case went to enforcement officer. qualified immunity.10 During due trial, acquitted charges. and she was period, same the Defendants filed a State- required by ment of Material Facts as one
B.
of the Southern District of Florida’s local
(the
Rules”)
initially
complaint
The Plaintiffs
filed a
rules
“Local
and also filed
19, 2005, in
August
supporting
the United States
affidavits to substantiate then-
purported
District Court for the Southern District of
facts. The Plaintiffs did not
They
complaint
swiftly respond,
amended the
and the district
Florida.
times,
time;
culminating
granted
in a fourth
them an
several
extension
their
(the “Complaint”),
complaint
amended
materials would be due on December
July
Complaint
response
filed on
2007. The
2008. The Plaintiffs filed their
twenty-four
raised
counts. Counts
I
briefs
that deadline. But these briefs
through
alleged
imprisonment
required
IV
false
did not contain the
citations to
record,
claims
the six officers and the
nor did the Plaintiffs file
supporting
on behalf of Fils and Maurice. Counts V
affidavits until December 8.
through
brought
separately
XVI
claims under 42 The Plaintiffs also did not
file a
Facts,
§
alleging that the six officers Statement of Material
but rather
U.S.C.
of,
deprived
among
purport-
had
Fils and Maurice
included
section
their briefs
things,
right
satisfy
requirement.
other
“the
to be free from
The De-
reply
unreasonable seizure.” The district court
fendants filed their
briefs on Decem-
Then,
interpreted
allege
these twelve counts to
ber 15.
on December
without
*8
an unreasonable
in violation
leave of the court or
seizure
consultation with the
Defendants,
Fourth Amendment because the officers
the Plaintiffs struck their De-
4
response
replaced
used excessive force
Fils and Mau-
cember
briefs and
through
alleged
XX
containing
rice.8 Counts XVII
them with briefs
more extensive
Complaint alleged jurisdiction
8.The district court articulated its understand-
9. The
based on
23, 2010,
§§
ings
August
limit-
28 U.S.C.
1331 and 1343 for the federal
its order of
on
claims,
(the
§
§
and
U.S.C.
1367 for the
1983
28
ed remand from this court
"Order on
Remand”).
state law claims.
Amendment
Fourth
to
applicable
United States Constitution is
instruction,
pursuant
States
to the Fourteenth Amend-
At the
district court’s
De-
Ohio,
Mapp
ment.
367 U.S.
81 S.Ct.
filed consolidated motions in Octo-
fendants
(1961).
On the district summary judg- entered an order on the rulings The court then revised its on the This order did address the ment motions. qualified-immunity Defendants’ defenses. Defendants’ motion to strike the Decem- granted summary judgment It on all rele- Although the court chas- ber briefs. Riebel, City, vant to the Chief and counts incomplete the Plaintiffs for their and tised Goranitis, Arango, three of the officers: concluded, tardy tersely filings, the The Plaintiffs filed an Carlantone. analysis, “significant without fact dis- untimely appeal notice of of this revised putes preclude resolving [exist] ruling, and we will not review the district Rule 56.” It therefore denied case under regarding court’s conclusion these defen- summary the Defendants’ motions for dants. qualified immunity on judgment based on every count. again The district court denied Ber- appealed. Burns’s,
The Defendants June gert’s, On motion Williams’s an unpublished opinion we issued summary judgment qualified based on im- vacating ruling the district court’s and re- munity to the Plaintiffs’ excessive force case, jurisdic- manding retaining while Bergert’s and claims. Williams’s treat- opinion tion. Our first noted that was, according ment of Maurice surrounding actions their re- Plaintiffs’ court, excessive and unreasonable. sponse to the Defendants’ motions for Maurice, Bergert, Both tased officers first summary judgment violated the Local Regarding Bergert, and then Williams. aspects Rules and of the Federal Rules of applied the district court the three factors Civil Procedure. We then instructed the Connor, set forth in Graham U.S. take following district court to actions: 386, 396, 1865, 1872, 109 S.Ct. 104 L.Ed.2d (1) any inform it us whether considered (1) (1989), and found Maurice was response the Plaintiffs’ briefs or evidence (2) crime; not arrested for a serious deadline; filed after the December Maurice did not an immediate pose threat (2) rely if it did of these (3) anyone’s safety; that “under documents, to enter a comprehensive or- facts, Maurice’s account of the he was identifying der the constitutional basis of arrest, cooperative, not resisting § expressly the Plaintiffs’ 1983 claims and flee, attempting disobeyed and never upon deny set out the it facts relied any direct orders.” The district court em- qualified immunity. Defendants phasized that “Maurice’s crime consisted (at most) 23, 2010, disobeying general disbursal August On the district court *9 questions uttering obscenity, answered our in a order and he thorough [sic] opinion. explained given warmings The court that it had was not verbal or direct tased, papers posed considered the Plaintiffs’ revised was he instructions before he electronically 11. The Plaintiffs also filed ex- district court's Order on Remand indicated 10, 2009, February papers paper hibits on that were not that these were filed form previous filings. included in electronic or around December 2008. point after Burns tackled her. Al- anyone, and there some specific threat no though presented regard- Fils no evidence police officers on were numerous conduct, ing Bergert’s to tase Maurice the district court Bergert’s decision scene.” police reports on the relied submitted was therefore unreasonable. perhaps the Defendants and inferred that evidence most favor- According to the after “Bergert tased her she lost con- Maurice, to tase Williams’s decision able to sciousness.” Maurice, Ber- prevent his failure to and Mau- The district court noted the dearth of “grinding his taser into gert from pre-existing precedent condemning tasers applying neck and a contact tase” rice’s noted, however, It excessive force. This version these circumstances. constituted precedential fired a that other cases dealt with suggests of the facts Williams cage Maurice’s other non-lethal forms of force—attack probe second taser into rib dogs pepper spray, specifically up when Maurice had tensed follow- either —in circumstances. The Bergert’s initial tase or after he had similar court there- case, In either fore found Defendants should ground. fallen to the using should have been on notice that force district court found Williams Maurice violated manner was unconstitutional. tasing have known that rights. his Fourth Amendment Bergert’s, The district court also denied Burns’s, also denied and Williams’s motions for sum- Burns and immunity mary judgment regarding excessive the Plaintiffs’ qualified Fils’s battery to the facts in state-law claims. The According claim. Defendants force favor, at asserted a state-law defense similar began yelling police Fils’s she non-threatening they qualified immunity police manner after that absolves of- in a Maurice. Burns then “slammed ficers from excessive force claims when the tased ground enough “reasonably into the hard officer believes the force to be [Fils] necessary This use of force to defend himself or another knock her unconscious.” unreasonable, bodily making officer from harm while according was (citation at physi- court: fact that she did not arrest.” Order Remand “[T]he omitted). Summary judgment cally policemen inap- touch the whole because, strong propriate that she was all for these counts as with time was evidence claims, policeman bark and no bite. A reasonable the federal excessive force issues of at- fact regarding propriety would have warned Fils —or least existed Plain- tempted resorting sig- against to do so—before Defendants’ use force nificant tiffs.12 force.” appealed three officers reports
Police also demonstrated These the Order jurisdiction. Bergert applied a contact tase to Fils at on Remand.13 We have above, Following filed a defec- the district court’s Order on Re- As noted the Plaintiffs mand, following appeal at issue: claims remain tive notice of of the district court's against Bergert Fils's excessive force claims Order on Remand. We therefore will not VII, (Counts claims, Ribel, respectively); V and Burns address the Plaintiffs' other against Carlantone, Goranitis, claims Ber- Maurice’s excessive force City, Arango (Counts XIII, gert XI and re- and Williams hereby are dismissed from this action. battery spectively); Fils's claim Ber- (Count XXIII); supplemental 13. The Plaintiffs filed a brief to gert and Maurice's and Burns days after the deadline we battery against Bergert and this court several claim Williams (Count XXIV). filing set for such briefs. The Defendants *10 7.5(c) Gutierrez, Local Rule because the Plaintiffs’ Hadley v. 1328- accompa- were neither (11th Cir.2008). factual assertions to record mate- by specific nied references rials, para- in organized nor numbered II. the scheme graphs correspond with merits, we must addressing the Before by According the Defendants. to the used by raised preliminary address three issues Defendants, the district abused its two con- the Defendants. The first issues (1) by considering the Plaintiffs’ discretion court abused its cern whether the district Facts, defective of Material Statement by indulging the Plaintiffs in discretion (2) failing to hold that the Plaintiffs’ defec- dilatory practices during summary their effectively tive submission admitted to the The third issue ad- judgment briefing. facts as set out the Defendants’ State- her exces- dresses whether Fils abandoned ment of Material Facts. See Local Rule Bergert. sive force claim 7.5(d). im- Such a concession would have case; pacted the if the Plaintiffs admitted A. Defendants, by to the facts as laid out summary judgment likely would have been complain The Defendants first proper. the Plaintiffs did not submit valid State ment of with their brief Undisputed Facts find, however, that the district We opposing summary judgment, required as court did not abuse its discretion. Local 7.5(b).14 Instead, by Local Rule the De “designed help rules such as these are allege, fendants the Plaintiffs inserted identify organize the court the issues pur within each of briefs a Int’l, Inc., their section in the case.” Mann v. Taser (11th Cir.2009). porting satisfy the Local Rule. This As not, such, of facts according great statement did “we ‘give deference to a dis Defendants, satisfy requirements interpretation trict court’s of its local brief, (3)Consist granted separately para-
moved to strike this and we numbered graphs. their motion. Statements of material facts submitted in pertinent portion 14. The of Local Rule 7.5 opposition summary judg- ato motion for reads: correspond ment shall the order and paragraph numbering with the RULE 7.5 MOTIONS FOR SUMMARY scheme movant, repeat used need JUDGMENT but paragraphs. text of movant's Addition- (b) Opposition Papers. papers party oppos- opposing summary al facts which the summary judgment judgment a motion for shall are contends material shall be law, necessary placed include a memorandum of numbered and at the end of the affidavits, single opposing party’s and a concise statement of statement of material facts; numbering the material facts as to which it is contend- the movant shall use that genuine ed that there exists issue to be scheme if those additional facts are ad- reply. tried. dressed in the (c) (d)Effect Statement of Material Facts. The state- of Failure to Controvert State- Undisputed ment of material facts submitted either in ment of Facts. All material support opposition to motion for facts set forth in the movant’s statement summary judgment supported required by shall: filed and as Local (1) (10) 7.5(c) pages length; Not exceed ten will Rule be deemed admitted unless (2) supported by specific opposing party’s Be references to controverted state- ment, pleadings, depositions, provided answers to inter- that the Court finds that the admissions, rogatories, supported by and affidavits on movant’s statement evi- Court; file with the dence in the record.
1283
”
Herbert,
differently.
Cooter &
died
issue
Gell
Reese v.
F.3d
rules.’
Cir.2008)
384, 400-01,
(11th
Quick
Corp.,
v. Hartmarx
496 U.S.
(quoting
22n.
2447, 2458,
B. from the First Circuit that undercuts their Caribe, Inc., Defendants also contend that In argument. Cia. Petrolera Caribbean, Inc., (1st the district court abused its discretion v. Arco evidence, considering any Cir.1985), of the Plaintiffs’ the defendants moved sum- they paper and, which submitted on Decem day mary judgment on the scheduled filing days motion, ber four after the deadline. hearing on that the defen- for a They they prejudiced claim that reply supporting dants filed brief and submission, tardy evidence, and that these docu this containing documents new id. at should not have been considered. ments 409. The district court considered this evidence, give late brief and but did cite several cases from The Defendants plaintiffs opportunity respond holding that a district appeals the courts of filings. Id. at 409-10. The court of filing court’s strict adherence to a deadline found that these actions constitut- appeals Young E.g., is not an abuse of discretion. discretion, not ed an abuse of because Florida, Bay, Palm deadline, filing district court overlooked (11th Cir.2004). cases, These 863-64 filing deprived the late but because however, support argument. their do not newly plaintiffs opportunity of an to rebut thing to affirm a district court’s It is one proffered evidence. Id. It is being action as within its discretion. precedent, thing entirely to find that an ac- Measured another court did not abuse its discretion. tion fell outside the district court’s sound district aggrieved party Cia. Petrol- necessarily Discretion entails Unlike the discretion. Caribe, already pos- the Defendants flexibility autonomy; the district court era Fils and Maurice depositions sessed the simply not abuse its discretion be- does fact, In han- this civil case.15 court would have connection with appellate cause the depositions included taken in December 8 submissions 15. We note that the Plaintiffs’ *12 1284 present argument in- that depositions were must to the district excerpts from Coal, court. See the Abolition Mari- supporting material their mo- cluded as of Atlanta, juana City Prohibition v. 219 Therefore, summary judgment.
tion for
(11th Cir.2000)
1301,
(finding
1325
argue
they
that
the Defendants cannot
plaintiffs
that the
a claim
abandoned
be-
surprised by
the existence of these
they
present
argument
did not
cause
surprise
documents.
If
was the form of
court).
sys-
to the district
Our adversarial
prejudice,
their
Defendants
should
it;
requires
tem
district courts cannot con-
have moved to extend the deadline to file
arguments
coct or resurrect
neither made
reply
delay
their
briefs.16 This brief
is not
by
parties.
nor advanced
See Resolu-
discretion;
an
sufficient to find
abuse of
Corp.
Trust
Corp.,
tion
Dunmar
43 F.3d
we have affirmed a lower court’s discretion
(11th
(“There
Cir.1995)
587, is no bur-
beyond
far
filing
to extend
deadlines
upon
den
the district
every
court to distill
Recile,
days
four
at issue here. See In re
potential argument
that could be made
(5th Cir.1974) (con-
675,
496 F.2d
680-81
upon
based
the materials before it on sum-
cluding
bankruptcy
that a
referee did not
mary
judgment.”);
Common
cf.
by allowing corpora-
abuse its discretion
Cause/Georgia
1340,
v. Billups, 554 F.3d
bankrupt
tion controlled
file
(11th Cir.2009) (“
court must
‘[A]
objection
years
two and one half
after the
identify and
put
evaluate the interests
for-
deadline).17
filing
We therefore conclude
justifications
ward
as
State
for the
did not abuse its
rule,
imposed by
burden
its
and then make
by considering
discretion
depositions
judgment”
adversary
the “hard
that our
filed on December 8.18
”
system
(quoting
demands.’
Crawford
Bd.,
Cnty.
Marion
Election
553 U.S.
C.
1610, 1616,
128 S.Ct.
L.Ed.2d
(2008))).
Finally, the Defendants contend
that the district court should
granted
have
Here, the
Bergert
district court denied
Bergert’s
qualified immunity defense
qualified immunity with respect
to Fils’s
against Fils
alleged
because Fils never
excessive
claim
force
because
ta-
Bergert applied
a contact tase —or
report
ser
his sworn affidavit—indi-
—and
applied any
excessive force-—in
of her
applied
cated that he
a contact tase to Fils.
filings in the
prevail
district court. To
point
But at no
during
litigation
did
(1)
particular
theory
liability,
party
allege
Fils ever
tased her
connection with Fils’s
trial.
adopted
binding
criminal
The dis-
17. The Eleventh Circuit
as
court,
Remand,
trict
in its Order on
did not
precedent
holdings
all
of the Fifth Circuit
rely
depositions,
on these
and instead relied
prior
to October
1981. Bonner v.
depositions
on the Plaintiffs’
taken in connec-
Prichard,
Cir.
Therefore,
tion with this case.
whether the
1981).
depo-
district court should have excluded the
sitions from the criminal case is irrelevant to
argue
18. The Defendants also
that the district
this discussion.
by considering
court abused its discretion
trial,
transcript
though
of Fils’s criminal
even
complaint appears
16.The Defendants’ real
requirements
it did not meet the relevant
un-
exist not in the district court’s consideration
der the Federal Rules of Civil Procedure. We
of the documents filed on December
but
need not address this issue
because
dis-
rather the fact that the Plaintiffs’ Statement of
rely
transcript
trict court did not
on this
comply
Material Facts did not
with Local
denying
qualified
complaint
immunity
Rule
7.5. This
Defendants'
discussed
II.A,
part
supra.
claims.
underlying
and the facts
the cause of ac-
(2)
the basis of
tasing formed
that such
Mungin
Ry.
v. Fla. E. Coast
tion. See
Bergert. The Com-
her lawsuit
(5th Cir.1969)
Co.,
1169, 1175
Bergert applied
alleged
plaint never
that,
54(c), a
(holding
under Rule
demand
alle-
tase;
only relevant factual
*13
its
contact
“money
for a
award” does not bar the
excessive force
regarding Fils’s
gation
pay”);
court’s award of “back
district
Burns
Gor-
reads: “Officers
claim
and/or
al.,
Wright
A.
et
Federal Practice
Charles
Plaintiff
Arango, grabbed
anitis and/or
(3d
§
at 180-81
ed.
& Procedure
Fils,
slamming
her head
lifting
up
her
1998) (“The
not whether the
question is
¶27.
Complaint
pavement.”
first
remedy,
plaintiff
proper
has asked for the
to the Defendants’
response brief
Fils’s
is entitled to
plaintiff
but whether
and her
summary judgment
motion for
added)).
remedy.” (emphasis
similarly
court were
silent
brief to this
her.
Bergert’s
by
colleague
conduct towards
likewise
regarding
The cases cited
our
may
do not hold that a district court
con-
appears to have
The district court
theory
liability
a
from
plaintiffs
struct
allegations
excessive force
read Fils’s
plaintiff
alleged.
facts that the
never
Ol-
con
Bergert’s
broadly
presumed
Pontiac-GMC,
Inc.,
Superior
son
allegedly lost
when Fils
tact tase occurred
(11th Cir.1985),
F.2d 265
comes closest to
inappropri
To do so was
consciousness.
proposition.
rehearing,
panel
On
the
may look at all the
A district court
ate.
defendant-appellee’s
addressed the
opinion
wheth
in the record to determine
evidence
panel opinion
argument
original
that the
regarding
material fact exist
issues of
er
improperly
argument
considered an
never
It
causes of action.
plaintiff’s
the
asserted
by
parties,
the
court or the
raised
district
not, however,
plaintiffs
act as a
law
may
appeal—
in the
court and on
both
theory of
party’s
the
yer and construct
employer did not meet the record
that the
alleged,
never
alluded
liability from facts
the Fair Labor
keeping requirements of
to,
during
litigation.
the
or mentioned
panel’s
at 266. The
Standards Act.
Id.
force claim
her excessive
Fils never based
determining
reads: “In
wording
broad
tase,
contact
and the district
on
case,
pretermitted by
are not
issue
pled her case for
should not have
court
from
district court or counsel
consider-
the
erred
The district court therefore
her.
record,
statute,
law,
case
ing the
the
summary judgment
Bergert
for
denying
context,
In
Id. at 266-67.
regulations.”
claim.19
Fils’s excessive force
however,
yield
this statement does
concurring
law cited
our
None of the
to this case that
application
radical
Olson,
upon this conclusion.
colleague casts doubt
In
suggests.
concurrence
54(c) con-
alleged
paid
Rule of Civil Procedure
that he was
below the
plaintiff
Federal
Superior
each
wage.
with “the
which
minimum
Ponti-
cerns itself
Olson
relief
ac-GMC, Inc.,
entitled,
1571-72
party
even if the
has not
party is
(11th Cir.1985),
by 776
pleadings.”
reh’g
on
its
demanded
relief
modified
added).
The case turned on whether
synonymous
Relief is
F.2d 265.
(emphasis
monthly
weekly
maintained a
employer
action
remedy, not the entire cause of
premised
Bergert's
battery
con-
alleged
claim was
committed
19. Fils also
logic
battery.
district court denied
of our discussion
state-law
tact tase of Fils. The
summary judgment on
Bergert's
battery
equal
motion
applies with
force to this
above
contemporaneous
rul-
on its
claim,
this count based
Fils abandoned
and we also find that
immunity.
denying Bergert qualified
Im-
this claim.
then,
ruling
plicitly,
the district court's
weekly
if
pay plan;
employer kept
Day
context.
v. McDonough, 547 U.S.
(the
plan,
plaintiffs position),
it was
126 S.Ct.
liable
L.Ed.2d 376
(2006),
§
was a
kept monthly
but was not
if it
case under 28 U.S.C.
plan
liable
(the
in which the
sponte
district court sua
employer’s position). Id. at 1576. To
raised,
behalf,
on the
conflict,
one-year
State’s
resolve this
the court first deter-
statute of limitations under 28 U.S.C.
employer
mined
bears the burden
2244(d).
201-02, 126
§
547 U.S. at
at
S.Ct.
proving
pay period.
duration of a
1679. Such action is inapplicable
pri
process
Id.
1575. It was
of this
litigation
vate civil
pro
because the States’
inquiry that
sponte
raised sua
cedural defenses in
“impli
habeas cases
recordkeeping requirements;
the Act’s
*14
beyond
cate values
the concerns of the
employer’s records were such that
205,
parties,”
1681,
id. at
126 S.Ct. at
such
court could not determine whether it used
“comity, finality,
as
expeditious
a weekly monthly plan,
and therefore
handling of
proceedings,”
habeas
id. at
the employer could not meet its burden of
208-09,
violated the Plaintiffs’
III.
Fiorino,
to do
permitted
are
so. Oliver
(11th Cir.2009)
898, 905
(citing
are
Remaining for our discussion
Callahan,
Pearson v.
555 U.S.
against
claims
Maurice’s excessive force
(2009)).
808, 818,
is the appropriate A. here, that there the Defendants —“shows any material genuine dispute is as to no The excessive Plaintiffs’ force 56(a). Fed.R.Civ.P. To determine fact.” arise from the claims Fourth Amendment’s the Defendants are entitled whether “against ... protection unreasonable sei law, accept a matter of the judgment as Connor, 386, v. 490 zures.” Graham U.S. of the draw all version facts and Plaintiffs’ 1865, 1871, 394, L.Ed.2d 109 S.Ct. 104 443 inferences in justifiable their favor. Pour (1989). An officer’s use of force is exces Gee, 1313, v. F.3d 625 moghani-Esfahani if under the Fourth Amendment sive the Cir.2010) curiam). (per 1315 “objectively of force was [unreason use light and able facts circumstances analyze We the Defendants’ 397, the at confronting” officer. Id. 109 qualified-immunity under a two- defense (citations quota internal at 1872 and S.Ct. First, we determine part framework.20 omitted). marks Reasonableness is tion and the allegations, the Plaintiffs’ whether from the of the rea “judged perspective favor, in their establish evidence viewed officer on without the sonable the scene” Katz, v. violation. Saucier constitutional hindsight. at 109 of Id. S.Ct. benefit 194, 200-02, 2155- 121 S.Ct. U.S. for This standard the (2001). “allowfs] at 1872. Second, 150 L.Ed.2d police are often forced fact officers right “clearly must estab constitutional be split-second judgments make circum lished,” that a officer such reasonable —in uncertain, tense, that are rap stances known that conduct violat should have his evolving the amount of force idly rights. constitutional Id. plaintiffs ed the —about necessary in particular situation.” must for an that elements be satisfied “Both 396-97, 109 at at 1872. qualified immunity.” Gri- Id. S.Ct. official to lose (citations (11th Cir.2010) question qualified im- n. 19 in- antecedent for The “acting munity omitted). the is whether officer was quotations Plaintiffs do ternal discretionary authority scope his of within acting claim that Defendants allegedly wrongful occurred.” acts when the authority. discretionary their outside Auburn, Ala., F.3d Grider of ways, rowdy, both but Reasonableness cuts crowd outside club was not summary judgment, At we can rather was “calm.” Maurice his back however. had subjective simply accept parking the officer’s turned to the to the lot—and events, group of but recon police having version rather must officers—and was light promoter. During the event in the most favorable with the struct conversation conversation, non-moving party pro- and determine Maurice told thought was ex he “they’re whether officer’s use of force moter that over- reacting, cessive under those circumstances. See overre- motherfuckers are Wilson, Vinyard, meaning 1347-48 acting” “they” presumably — (11th Cir.2002) Maurice, summary police. Having (evaluating, overheard Ber- allegedly up said, force un judgment, gert excessive walked to Maurice’s back and said, plaintiff, motherfucker?,” facts as you pulled der the described “what notwithstanding around, the defendant-officer’s dif out his Maurice taser. turned saw events). version of Bergert’s weapon, put up, ferent his hands step took one backward. Without ver- determining When whether warning, bal Bergert shot taser into his used to arrest force make an Maurice’s chest and electric delivered an purposes reasonable Fourth shock. Amendment, “a court carefully must bal claimed Williams to have observed this quality ance the nature and the intru interaction, initial and a infer- reasonable sion on individual’s Fourth Amend ence is that he saw and Ber- heard what ment interests countervailing gert saw and heard. Maurice not fall did *16 governmental v. interests.” Mann Taser following down Bergert’s tasing, initial but (11th Int’l, Inc., 588 F.3d 1305 Cir. swing any he did not his arms or in other 2009) Graham, (quoting U.S. at 490 Nonetheless, way resist arrest. Williams 1871). may 109 at S.Ct. Officers use force probes shot his taser into chest. Maurice’s “necessary is in the situation at And, finally falling ground, after to the Ferraro, Lee v. hand.” 284 F.3d Bergert his in put knee Maurice’s back (11th Cir.2002) omitted). 1197 (quotations his grinded contact taser the back into And we evaluate whether force was neces of neck saying, “you Maurice’s while moth- “‘(1) sary examining: severity of erfucker, you motherfucker.” After the (2) issue; the crime at suspect whether the incident, Maurice was charged with resist- poses safety immediate threat to the disorderly arrest without force and (3) others; the officers or whether conduct. suspect] actively resisting [the arrest or ” attempting by flight.’ to evade arrest circumstances, these Bergert’s Under Huntsville, Ala., City Brown and Williams’s use of force was excessive. (11th Cir.2010) (quoting Vinyard, 738 Measuring against these facts the three 1347); Graham, at see also 490 Graham, factors supra, from demonstrates at 109 at (referring U.S. S.Ct. to First, the obviousness of this conclusion. factors). these same for which crime arrested Maurice was
was Disorderly not serious. is not conduct 1. offense. Vinyard, serious 311 F.3d at These are the relevant Similarly, facts to resisting arrest without claim, Maurice’s light viewed in the danger- most force not connote a does level of to him. Following favorable the arrest of justify greater ousness that would use of friend, partygoer the female and her force.
Second, anyone, a threat and there was no clearly present pose did not to Maurice at- safety, indication that she resisted arrest or Bergert’s to or threat Mau- to at It there- anyone According tempted to flee. Id. 1347-48. safety of else. having a con- fore concluded that the defendant-officer’s rice, merely private he was him, excessive, “plainly Bergert approached pepper spray use of before versation taser, indeed, wholly unnecessary, grossly he saw the drawn. When taser under factors disproportionate [the from] his in the air and took put hands Maurice Lee, And, (quoting Id. at 1348 away Bergert. from because Graham.” step 1198). warnings issued no or directives F.3d Bergert disobey move, clearly did Maurice Other cases confirm that non-violent tase, Bergert’s initial any orders. After crimes, minor who suspects, accused of attempt to attack did not Maurice -just Mau- have not like resisted arrest — Williams, fired nonetheless or but Williams rice—are of constitutional abuse victims his taser. police when used extreme force subdue Third, resisting Gutierrez, arrest Maurice was In Hadley them. (11th escape. Although Cir.2008), he was attempting the defendant-officer arrest, Maurice’s charged resisting punched used excessive force when he that he did not of events shows version plaintiff plaintiff the stomach while the instructions, he nor did ignore verbal resisting was handcuffed and not arrest. himself from attempt free And, Id. at 1330. Priester v. ground. he once was on Florida, control Beach, Riviera F.3d 919 Cir.2000), the held the defen- oth Our conclusion is line with excessive when he dant-officer used force from court. er excessive force cases police plain- his dog released attack cases together, Put establish minor, tiff, who was accused of a non- a non-hostile and unprovoked force offense, obeyed every po- had violent who disobeyed who has not suspect non-violent command, lying lice and who was still on suspect’s rights instructions violates re- ground when the defendant-officer *17 Amendment. under the Fourth Although dog. leased his Id. at 923-24. example, Vinyard, plaintiff For the tasers, none of cases involved see by arrested the defendant-officer for was meaningful cir- no distinction under these law disorderly obstructing conduct and a Vinyard, 311 F.3d Compare cumstances. at 1344. enforcement officer. F.3d of to (finding pepper spray at 1348 the use the The defendant-officer handcuffed “gen- excessive even it is though be force in the of his plaintiff and sat her back seat erally (quotation of limited intrusiveness” car, plexiglass had a screen patrol which omitted)), Draper Reynolds, with the and back Id. at between front seat. (11th Cir.2004) (stating During ride from scene to 1343. the the that, it “unpleasant,” while a shock is taser station, defen- police plaintiff the the and the injury” “did not inflict serious exchanged verbal abuse. Id. dant-officer plaintiff). abuse, that Tired of the defendant-officer road, course, the car the side the Of the use of tasers or pulled to of vehicle, opened weapons to the not violate the Fourth exited the the door other does hair, seat, per be pulled plaintiff by the the Amendment se. Such force could back reasonably an eyes pepper appropriate in the with where officer sprayed and her suspect the is violent. See Id. This court noted believes spray. Lauderdale, minor, did not Fort plaintiffs crime was she McCormick (11th Cir.2003) more cantly police 1244-45 hostile to after to a (holding pepper spray screaming that use Maurice was tased. She was at suspect’s him Bergert, telling go. face was reasonable where to let Maurice At officer cause to probable point, Bergert arresting had believe this was Maurice Fils; suspect felony facing committed a back Bergert had violent and his was And, weapon). with a to respond was still armed would therefore be to an unable “hostile, suspect appears belliger where a from Fils. it was at point attack And ent, step use of taser that Fils took a uncooperative,” forward —still might struggle be to a preferable “physical screaming Bergert’s back. —toward [causing] suspect harm” to or serious During with Bergert’s encounter Mau- Draper, officer. See 1278 rice, assisting Burns was one of the other (approving of officer’s a taser use of with par- officers the arrest female stop at a traffic who suspect and her tygoer friend.22 Burns heard paced “used moved profanity, around and him, around, commotion behind turned agitation, at” repeatedly yelled ... Bergert saw shoot taser at his Maurice. officer, not comply and did with verbal point immediately He did not at that re- commands). spond only scene. It was after Fils stepped Bergert’s
But the forward to accept facts we must show back that responded Maurice was not violent. He did not diso- Burns and threw Fils to the bey ground.23 orders. He did not resist And arrest. posed he to no risk Defendants A reasonable could easily officer have Therefore, anyone else at the club. Ber- step Bergert’s seen Fils’s forward to back gert’s and Mau- tasing Williams’s violated to representing danger Bergert. as Fils
rice’s rights.21 Fourth Amendment screaming, clearly indicated that happy Bergert. she was not Because Fils, facing back was claims,
Turning to Fils’s the evi likely not be would able defend himself dence most light favorable her in the event that Fils attacked. The dan- ger indicates that Burns did not posed use excessive Fils was exacerbated testimony, force. According newly-discontented Fils’s own surrounding crowd signifi- vast, crowd the club Although outside became officers. the crowd of 21.The ingly district court also theorized is not liable for failure intervene in prevent failing Williams could be liable for force.”). arresting [tire officer's] use *18 Bergert grinding from his contact taser into Nothing Maurice's neck. in the Plaintiffs' regarding placement 22. facts The Burns's are Complaint, summary judgment papers, or taken from his sworn affidavit. Because the suggested their theory brief to court this deposition testimony Plaintiffs' tells us noth- liability. part of For in the reasons described Fils, prior taclding Burns’s to of actions II.C, supra, against Maurice cannot recover disputed the Plaintiffs have not these facts. Moreover, theory. Williams on this the rec- ord is silent as to whether had an Williams 23. Burns's affidavit that he states assisted opportunity to intervene. This silence is suffi- only Bergert jumped Bergert's after Fils on preclude liability. cient to v. See Brown began hitting back and him. Fils denies that Huntsville, Ala., 724, n. 740 25 of Bergert, she ever touched but admits that she (11th Cir.2010) ("Because the events relevant stepped toward back while she was happened quickly, so the record does not re- yelling. Putting testimony together, their any point flect at which have Anderson could undisputed text above meshes the facts. prevent arresting intervened [the to officer’s] use of excessive force.... Anderson accord-
1291
clear and the
court;
was
the law
may
who
have
twenty people
to
fifteen
notice.
Defendants
likely
3:00
drinking
was
been
a.m.—
—it
by Fils’s
danger posed
compounded
to
two methods
circuit uses
Our
circumstances,
Given these
forward.
step
officer
a reasonable
whether
determine
“split-
Burns’s
second-guess
to
we hesitate
is unconstitu
that his conduct
would know
Graham, 490 U.S.
See
judgment.”
second
at the rele
looks
first method
tional. The
397, 109
at 1872.
S.Ct.
at
violation;
the time of
law at
vant case
if “a con
was
clearly
used here
established
Furthermore,
right is
the force
make
as to
approved
so
[exists]
context
the force
crete factual
less than
arguably
ac
government
There,
it
to
reasonable
defendant-officer
obvious
Draper.
inof
law.”
federal
actions violate
refused
his
belligerently
tor that
who
a motorist
tased
(citation F.3d at
Hadley,
instruc-
defendant-officer’s
obey the
omitted). This method
tasing
quotations
in
internal
F.3d at
tions.
law be
the case
that
require
de-
does not
because
acceptable
case
that
was
con
the officer’s
similar” to
“materially
cal-
reasonably have
could
fendant-officer
that
duct;
be on notice
can
“officials
still
issuing
handcuffs
applying
culated that
law even
established
their
violates
conduct
“may well have
warning
a verbal arrest
Hope, 536
circumstances.”
factual
novel
situation
difficult
a tense and
... escalated
But,
741,
at 2516.
where
122 S.Ct.
U.S. at
Id.
struggle.”
physical
into a serious
“a
propositions,
stated
broad
law
Fils,
quickly
Burns
Here,
than tase
rather
particu
prior
factual
very high degree
And,
so
he did
ground.
Fils to
tackled
740-41,
Id. at
necessary.”
larity may be
from
a tense scene
prevent
simply to
United States
(quoting
at 2516
122 S.Ct.
he could
rather because
escalating, but
1219,
Lanier,
117 S.Ct.
520 U.S.
was
that Fils
reasonably believed
have
(1997)).
137 L.Ed.2d432
behind. We
from
to attack
about
the district
conclude
therefore
method looks
The second
to quali-
entitled
that Burns is
erred
conduct,
law,
the officer’s
but at
at case
immunity.
fied
“lies so
conduct
whether
inquires
very core
what
obviously at the
B.
the un
prohibits
Amendment
Fourth
readily ap
was
conduct
law lawfulness
turn
whether
now
We
officer], notwithstanding
parent
[the
force claim
Maurice’s excessive
relevant
Vinyard,
case law.”
fact-specific
clearly lack of
Williams
Bergert and
(citations and internal
at 1355
deny
qualified-im
To
their
established.
omitted).
method-
This
quotations
defenses,
August
the law
munity
a “narrow
clarity,” id.—is
“obvious
put
termed
sufficiently clear
been
must have
only
rule that
to the normal
exception”
notice
their
Bergert and Williams
can
factual scenarios
specific
case law
Amend
Fourth
Maurice’s
conduct violated
Lee,
violation,
Pelzer,
clearly establish
536 U.S.
Hope
rights. See
ment
generally
facts are
Concrete
1198-99.
153 L.Ed.2d
730, 739,
S.Ct.
*19
notice
officer with
necessary
provide
(“For
right to
(2002)
a constitutional
and
excessive
“hazy
border between
established,
be
contours must
clearly
its
be
But,
id.
where
force.” See
acceptable
official
that a reasonable
sufficiently clear
it
outrageous
is so
conduct
doing officer’s
he is
that what
would understand
borders,
these
beyond”
“so far
(citation
clearly goes
and internal
right.”
violates that
him
protect
not
immunity will
qualified
omitted)).
with the
agree
We
quotations
exist,
even in
of case
Reese v.
if
the absence
law.
Even
these
did not
cases
Herbert,
Cir. Defendants’ conduct would fall under the
2008)
Priester,
(quoting
926-
clarity” exception
narrow “obvious
de-
27).
above.
as we
scribed
The facts
must ac-
cept them show that Maurice showed no
method,
and
Bergert
Under
either
Defendants,
hostility to the
did not disobey
Williams should have known that
their
orders,
any
any
and did not make
menac-
conduct violated Maurice’s Fourth Amend-
facts,
ing gestures. Assuming these
no
rights.
ment
Maurice was
even
tased
reasonable officer could ever believe that it
though he committed at
minor of-
most a
appropriate
probes
to shoot his taser
fense;
arrest;
he did not resist
he did not
into Maurice and shock him. This line is
anyone;
disobey
threaten
and he did not
hazy, and
(for
Bergert’s
not
and Williams’s ac-
given).
none
instructions
clearly
Reese,
tions were
See
wrong.
sufficiently
These facts are
to the
similar
(“It
beyond question
F.3d at
Vinyard
facts of
and
Priester
that these
‘clearly
the law was
established’ so as to
Defendants were
notice that their con-
give the
warning
defendants fair
that their
duct
rights.
violated Maurice’s
In Pries-
ter,
actions
such circumstances violated [the
dog
defendant-officer set his attack
plaintiffs] Fourth
rights.”).
Amendment
on the plaintiff
though
plaintiff
even
properly
district
therefore
de-
had
submitted
defendant-officer’s
Bergert’s
nied
and
every
Williams’s motions for
and was laying
command
flat on the
summary judgment
qualified
based on
im-
ground.
And,
tiff, who was
safely
handcuffed
in the back
IV.
car,
seat of the defendant-officer’s police
reasons,
had
no
threatened
one. 311 F.3d at
the foregoing
For
we AFFIRM
two
clearly
1347-48. These
cases
respect
establish
the district court with
to Maurice’s
that such force is excessive where the sus-
Bergert
excessive force claims against
pect
Williams,
is non-violent and has not resisted
we REVERSE the district court
arrest.
respect
While
cases are
identical
to Fils’s excessive force
case,
they
Maurice’s
Burns,
need not be “mate-
claims
we AF-
rially similar”;
precedent
only
need
FIRM
district court’s decision to dis-
provide the
claims,
Defendants with
warn-
“fair
miss the remaining
and we RE-
ing.”
Hope,
AFFIRMED the been raised in district court. And it and REMANDED. part, in this context that we declined to KORMAN, concurring: Judge, District ground issue on the that a consider the generally cannot obtain a reversal on party I majority opinion. I in the concur Moreover, ground a below. not asserted respect to the issue separately write circumstances, in not even those we have pendant state force and of Fils’s excessive a rule. adopted hard fast See Resolu- Bergert. Brief- battery against claims law Trust, 598-99; also, tion 43 F.3d at see denying reverses the order ly, majority the Now, Inc. v. Southwest Access Airlines summary judgment for motion (11th Cir.2004) Co., on a judge the district relied theo- because (we power “recognize that a circuit court’s allege in ry liability of which Fils did not argument an raised for the entertain support of cause of action Ber- the a appeal jurisdictional first time on is not use alleged on his excessive of gert based thus, one; may choose to hear the we judge Specifically, the district re- force. circumstances”). argument special under by supplied evidence Officer Ber- lied on during he tased Fils the gert that had only not have the discretion to con- We the with her that led course of encounter arguments for first sider raised the time to her arrest. have held appeal, we also have majority recognizes arguments the discretion consider “[a] While the appeal all evidence raised either on or in the district may look at the district Pontiac-GMC, Superior court. record to determine whether issues Olson the (11th exist,” Inc., Cir.1985), it holds that a “[t]o of material fact liability, under the Fair Labor particular theory of a case decided Stan- prevail on Act, Pass- present argument particularly apposite. the dards is party must ing legal of the Majority Opinion court.” cit- over detailed discussion district Coal, case, Marijuana defendant-appellee the issues the the Abolition of for Atlanta, rehearing the inter ground, 219 F.3d moved for Prohibition v. Cir.2000). alia, an According panel “that the considered issue appeal not raised or on when majority system [it] the adversarial re- below “[o]ur monthly it; employer’s pay concluded that the quires district courts cannot concoct or period recordkeeping nor did not meet the re- arguments neither made ad- resurrect the statute was never (citing quirements [which Id. at 1284 parties.” vanced the 266. In- plaintiff].” the Id. at Corp. Corp., argued v. Dunmar Resolution Trust (11th Cir.1995) deed, for in an exercise panel engaged entirely different, majority in holds be although that the this case unarguable, “[tjhere lawyer upon improper, plaintiffs no it as proposition “act[ed] burden theory lia- potential party’s every constructed] court to distill to, upon alleged, alluded bility made from facts never argument that could be based Ma- summary judg- during litigation.” or mentioned the materials before it on Nevertheless, ment”). in de- jority Opinion support These cases do majori- petition rehearing, nying rule Olson application on which the that, determining an panel held issue “[i]n of this Both of ty relies to the facts case. case, pretermitted by appeal we are not foregoing cases involved considering from or counsel in which a district court judgment from an adverse law, record, statute, regu- case sought to and obtain rever- plaintiff raise *21 1294 defendant, Moreover, Judge including at 267.26 as the the statute of lim
lations.” Id. observed, See, Tjoflat beyond has is dis- Day “[i]t e.g., McDonough, itations. 547 that, power in have to pute general, 198, we the 210, 1675, 126 U.S. S.Ct. 164 L.Ed.2d to party that a fails raise consider issues (2006). 376 We have likewise held that appeal, though petitioner even the does the “when failure raise affirmative right not have the to demand such consid- prejudice plaintiff, defense does not the it Crosby, eration.” Thomas v. 871 F.3d a is not error for trial court to evi hear Cir.2004) (11th J., (Tjoflat, concurring) dence on the issue.” Hassan v. Post U.S. (internal omitted). Thus, he citations con- Service, al Cir. tinued, ultimately “this case involves a 1988). Moreover, Supreme the Court has question power, of our not of Thomas’s that “that observed district courts are rights or he whether waived them.” Id. widely acknowledged power possess the there are While sound considerations of judgment to enter sua summary sponte, so policy support that general the rule where long losing party as the onwas notice that appellants the failed to alert the district she had come forward all her evi they to arguments ap- that raise Catrett, Corporation dence.” Celotex peal, arguments those do not to a apply 317, 326, 477 U.S. 106 S.Ct. case which the district court raised and (1986); also, Wright, L.Ed.2d 265 see 10A sponte. considered issue Nor the sua is Kane, Miller and Federal Practice and holding there for sound basis that a (3d ed.1998) § Procedure p. 339 district court lacks the same discretion (“The major concern in cases which the argument that do to consider an not summary court wants to judgment enter by parties. raised the On contrary, a without Rule motion by party either is is compelling authority prop- there for the really not one power,” it is notice osition that entirely proper it is for a dis- party against judg whom it seeks to enter judge trict to exercise his discretion to ment). an argument provided consider such party adversely affected has had suffi- majority distinguish The effort of the opportunity cient to be heard on the issue. Day and only Celotex serves to confirm Thus, that, case, in an Supreme appropriate a Court has held district a judge judge district has the “permitted but discretion to sua consider obliged” sponte sponte to sua entertain affirma- issues not raised parties. tive Thus, defenses that have not suggests “Day’s been raised it status as a Conceding holding allegations” force of the in Ol- factual coct[ed] does a disser- son, Majority Opinion majority ar- judge vice to conscientious district who gues recordkeeping requirements "[t]he relied on factual from the defen- admissions plaintiff's were an issue relevant fac- report dant written and affidavit as claim; tually-pled did denying Olson court summary basis his motion for allegations plaintiff's concoct judgment. factual on the directly The facts were relevant Majority Opinion behalf.'' 1286. This is a to Fils's cause action for excessive use of force, analysis. distinction cannot they withstand were not inconsistent with upon majority critical allegations complaint fact which the relied ade- —the comply on in Olson—the failure to quacy with the challenged. which was A never recordkeeping allega- judge clearly statute —was factual district has discretion to tion that plaintiff, did not come from the ruling it consider the entire record in on mo- sponte. legal summary was raised judgment being sua So too was the tion for without theory to which those "concoctflng] allegations.” facts were relevant. accused of factual Moreover, See, U.S.A., majority’s Inc., suggestion e.g. that the Clinkscales v. Chevron judge (11th Cir.1987). present in the case "con- *22 al., et Federal Wright Alan 10 Charles applicabil- limits inherently its case habeas (3d § Procedure Practice procedural the State’s because ity here alia, ed.1998) Mungin v. Flor- inter citing, ‘implicate values cases in habeas defenses ” Co., Ry. Coast ida E. Ma- parties,’ the of the concerns beyond Cir.1969). that suggests it Opinion jority “has been Rule [also] Significantly, a district because “inapplicable is Celotex 56 to with Rule conjunction in invoked judg- summary to render power court’s to sum- render decision the court’s support courts’ from the stems sponte sua ment nonmoving party for the judgment mary Id. economy ...” judicial in interest justified is result that that ground on the the effort taking issue Without power to Although the evidence. by the rationale for the explain majority to of the in the ab- summary judgment a render support the decisions, they plainly these is generally recog- a sence of cross-motion ultimately in- case this that proposition Rule authority the within as nized and not of discretion an issue volves 54(c) to Rule referring itself, those courts power. policy the noting that are simply for this support Moreover, additional technicalities pleading to ensure rule con- ultimately cases is the may be found relief what control proposition do not expressly sum- which the court’s supports struing Fed.R.Civ.P. awarded also judgment Id. authority.” “every ... final mary-judgment provides party each to which the relief grant should said, procedural the having been All not de- entitled, party has if the even is Specifi- troubling. case is of this posture Fed. pleadings.” in its relief manded Fils to invoke the failure cally, on 54(c). treatise leading As the R.Civ.P. district which the liability on theory of observes: Practice Federal suggests judgment summary denied court inadver- rather than decision a deliberate support used has been rule [T]he to re- Indeed, of Fils the failure tence. set out legal theories that the conclusion of Officer argument to the spond binding not complaint are deci- a deliberate confirms appeal on this Cir- the Second example, For plaintiff. force limit her excessive by Fils sion to the United lien priority granted cuit (which the claim of action cause for proceeding bankruptcy in a States she rejects) that majority properly withholding security and unpaid social awith ground hurled unjustifiably did government though even taxes con- to lose her to cause sufficient force referee lien before urge the not circumstances, it Under sciousness. an action ... court. And abandoned as to consider appropriate the Rail- under of a union by members the district upon which ground only individual inAct which way Labor judgment. summary the motion denied sought, the damages pay back reversal basis for a sufficient provides This deter- case] pre-split [in Fifth Circuit that would creating precedent without also involved action mined of discretion district court deprive entire behalf of for relief claim on a summary judgment motion for deny a pleaded, specifically craft, although argued. ground for further action and remanded what- award of including an proceedings, vin- appropriate be relief would
ever rights.
dicate those