Payrow v. Chronister

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

BABAK PAYROW,

Plaintiff,

v. Case No. 8:22-cv-520-TPB-UAM

CHAD CHRONISTER, in his official

capacity as Sheriff of Hillsborough

County, and DAVID CLOUD, in his

individual capacity,

Defendants.

_________________________________ /

ORDER GRANTING DEFENDANTS’ MOTIONS

FOR SUMMARY JUDGMENT

This matter is before the Court on “Defendant’s Dispositive Motion for

Summary Judgment and Incorporated Memorandum of Law” (Doc. 69), filed by

Defendant David Cloud on November 27, 2023, and “Defendant’s Dispositive Motion

for Summary Judgment and Incorporated Memorandum of Law” (Doc. 71), filed by

Defendant Chad Chronister in his official capacity as Sheriff of Hillsborough

County, Florida, on November 27, 2023. Plaintiff filed responses to the motions on

December 22, 2023 (Docs. 75; 76), and Defendants filed replies on January 9, 2024

(Docs. 79; 80). The Court held a hearing on the motions on May 13, 2024. (Doc.

108). Following the hearing, each side filed notices of supplemental authority.

(Docs. 109; 110). Based upon the motions, memoranda, replies, argument of

counsel, court file, and record, the Court finds as follows:

Background

This § 1983 case arises from a November 29, 2017, encounter between

Plaintiff Babak Payrow and Defendant David Cloud, a Hillsborough County

Sheriff’s Deputy. Payrow suffers from serious mental illness, including

schizophrenia, and he has been involuntarily committed on more than one occasion.

That night, Cloud pulled his patrol car up behind Payrow, who stopped and

advanced toward the car. Cloud emerged from the vehicle. Payrow, ignoring

Cloud’s instructions to stop, suddenly and without warning charged aggressively at

Cloud, who shot Payrow several times.

Payrow was taken to the hospital for treatment. Based on Cloud’s

statements that Payrow wielded a weapon when he attacked, Payrow was arrested,

booked, and charged with aggravated assault and attempted murder of a law

enforcement officer. The State of Florida dropped the assault charge, and Payrow

was acquitted by a jury after trial on the attempted murder charge. He thereafter

filed this suit for damages under § 1983 and state law for excessive force and false

arrest against Cloud and Defendant Chad Chronister in his capacity of Sheriff of

Hillsborough County.

Both Defendants have moved for summary judgment on various grounds.

Resolving the motion requires understanding the eyewitness testimony concerning

the events of November 29, 2017.

Witness Accounts of the Incident

Three individuals have provided eyewitness testimony as to the incident in

suit: Payrow, Cloud, and Daniel Rojas, a non-party witness who lived near where

the encounter between Payrow and Cloud occurred. All three testified in the

criminal proceedings against Payrow.

Cloud’s Account

According to Cloud, he was driving alone in his patrol car on Turner Road in

northern Hillsborough County at 10:30 that night when he passed the intersection

of Turner and Brushy Creek Drive. He noticed Payrow sitting on an electrical box

near the intersection. Cloud did a U-turn on Turner Road, returned to the

intersection, turned onto Brushy Creek Drive, and pulled up behind Payrow, who

had begun walking down that residential street. Cloud shone his patrol car’s

spotlight on Payrow, who then turned and advanced toward Cloud’s patrol car.

Cloud emerged from his car. Payrow, appearing to Cloud to be mentally disturbed,

said “FBI special investigation” and advanced toward Cloud with his right hand

inside a small bag he was carrying. Cloud ordered him to stop. Payrow suddenly

and aggressively charged at Cloud, withdrawing from a small black bag something

that Cloud took to be a knife. As Payrow rushed at him, Cloud, fearing for his life,

drew his service revolver and shot Payrow several times. Payrow collided with

Cloud, and they both fell to the ground. Cloud called for backup and medical

assistance for Payrow.

Law enforcement recovered a number of items at the scene consistent with

Cloud’s testimony, including a small black bag and a screwdriver, which lab

analysis showed had Payrow’s DNA on it. Medical evidence showed that Payrow

had been shot in the front, and Cloud’s shirt had Payrow’s blood on it, consistent

with Cloud’s testimony that Payrow had charged him, Cloud had fired, and Payrow

had collided with him.

Rojas’s Account

Daniel Rojas lived in the neighborhood and witnessed the attack. He

provided a description that is generally consistent with Cloud’s version, although

there are discrepancies as to some details. According to Rojas, after Cloud emerged

from the car and told Payrow to stop, Payrow hesitated and then rushed at Cloud

aggressively as if to tackle him, at which point Rojas heard a series of gunshots in

rapid succession. Rojas quickly went inside his house, fearing that Payrow had

shot Cloud and might turn on him next. When Rojas emerged from the house, he

saw Payrow lying on the ground and Cloud standing.

The most significant difference between Rojas’s and Cloud’s accounts is that

Rojas did not see anything in Payrow’s hands as he attacked. Rojas, however,

acknowledged in his deposition in the criminal case, “it’s not like I was looking at

the same time. . . . [I]f he had a little screwdriver on him or something, that was out

of my sight, you now, not that I was looking. Again, in my mind, he had shot the

cop; the suspect shot the cop. That’s why we ran.” Rojas testified he also did not

see Cloud draw his revolver, because “[e]verything happened so fast.”

Payrow’s Conflicting Accounts

Payrow has offered multiple, conflicting accounts of what happened. First,

at his trial for attempted murder in early 2020, Payrow testified under oath that he

was not even present on Brushy Creek Drive that night, that he had no encounter

with Cloud, and that he was shot by an armed robber at another location in an

unrelated incident. As noted above, Payrow obtained an acquittal on the

attempted murder charge.

In early 2022, Payrow filed this lawsuit against Cloud and Sheriff Chronister,

asserting and state law claims for excessive force, false arrest, and false

imprisonment. Contrary to Payrow’s testimony in his criminal trial, Payrow’s

original complaint in this case alleged that Payrow encountered Cloud on Brushy

Creek Drive that night. Cloud pulled up behind him and shone the patrol car’s

searchlight on him, which caused Payrow to turn and face Cloud. Cloud emerged

from his patrol car with his hand on his weapon. Payrow took a few steps

backward and then “continued in the direction of his residence, which was located

only a few houses north.” The complaint alleged that Cloud shot Payrow in the

back as Payrow walked away.

Payrow filed an amended complaint in June 2022, changing his story yet

again in at least one material respect: Payrow alleged that when Cloud shot him

without warning, Payrow had begun to move “in the direction towards his residence

and [Cloud].” The amended complaint did not allege that Cloud shot Payrow in the

back. In his November 2022 sworn interrogatory answers, Payrow first stated that

“as I continued to move closer to the deputy, he shot me.” But then in another

answer he stated, “[t]he deputy shot me for walking away,” which appears to return

to the version of events alleged in the original complaint.

In Payrow’s February 2023 deposition testimony, he stated, contradicting the

allegations of his complaint, that he did not see Cloud pull up behind him, that

Cloud shone no spotlight on him, and that Cloud said nothing to him. He also said

he never rushed at Cloud. Addressing his interrogatory answer stating that Cloud

shot him “as [he] continued to move closer” to Cloud, Payrow stated what he really

meant was the opposite: it was Cloud who moved towards him. Payrow further

testified:

Q: So you were walking away from him when you were shot?

A: Yeah.

Q: So were you shot in the back?

A: No, he was – he shot me up front, yeah.

Q: How were you walking away from him if you were shot in the

front?

A: Well, he just started firing at me. He didn’t say nothing, he just

shot me, and I didn’t – I wasn’t going towards him, I was going

towards my grandma house, and I just got shot six times, that was it.

Payrow also testified in the deposition that all his testimony at the criminal trial

was truthful, but he claimed not to recall his trial testimony that he had not

encountered Cloud that night and suffered his gunshot wounds in a different

incident at another location.

Payrow’s Claims and Defendants’ Summary Judgment Motions

The amended complaint alleges claims for excessive force under Florida law

against the Sheriff (Count I), unnecessary/excessive force under 42 U.S.C. § 1983

against Cloud (Count II), false arrest under Florida law against the Sheriff (Count

III), false imprisonment under Florida law against the Sheriff (Count IV), and false

arrest under § 1983 against Cloud (Count V).

Defendants have moved for summary judgment as to all claims on multiple

grounds. Both Defendants argue that Payrow’s claims should be rejected based on

judicial estoppel because Payrow gave testimony under oath in his criminal trial

directly contrary to the position he now takes in this civil lawsuit. Alternatively,

they argue Payrow’s account of the incident on Brushy Creek Drive should not be

considered for purposes of summary judgment because Payrow is incompetent to

testify and/or because no reasonable jury could accept his testimony, given the

overwhelming record evidence to the contrary.

Cloud further argues the § 1983 claims against him should be dismissed

based on qualified immunity. The Sheriff argues that, depending on which version

of events the Court credits, either sovereign immunity precludes the claims against

him because Payrow acted with malice, or Payrow has failed to establish the

elements of his claims for excessive force, false imprisonment, and false arrest.

Legal Standard

Summary judgment is appropriate “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). A properly supported motion for summary

judgment is not defeated by the existence of a factual dispute. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249 (1986). Only the existence of a genuine issue of

material fact will preclude summary judgment. Id.

The moving party bears the initial burden of showing that there are no

genuine issues of material fact. Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256,

1260 (11th Cir. 2004). When the moving party has discharged its burden, the

nonmoving party must then designate specific facts showing the existence of

genuine issues of material fact. Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,

593-94 (11th Cir. 1995). If there is a conflict between the parties’ allegations or

evidence, the nonmoving party’s evidence is presumed to be true and all reasonable

inferences must be drawn in the nonmoving party’s favor. Shotz v. City of

Plantation, 344 F.3d 1161, 1164 (11th Cir. 2003).

Judicial estoppel is an equitable doctrine committed to the discretion of the

district court. Slater v. United States Steel Corp., 871 F.3d 1174, 1180 n.4 (11th

Cir. 2017) (en banc).

Analysis

Judicial Estoppel Bars Payrow’s Claims.

Both Defendants argue that summary judgment should be granted based on

judicial estoppel. “[J]udicial estoppel is designed to prevent a party from asserting

a claim in a legal proceeding that is inconsistent with a claim taken by the party in

a previous preceding.” Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th

Cir. 2010) (quotation omitted). Judicial estoppel is designed to “protect the

integrity of the judicial process by prohibiting parties from changing positions

according to the exigencies of the moment.” New Hampshire v. Maine, 532 U.S.

742, 749 (2001) (internal quotation omitted).

In deciding whether to apply judicial estoppel, courts consider whether: (1)

the party to be estopped took a position under oath in a prior proceeding that is

inconsistent with his or her position in the current lawsuit; and (2) the party

intended to make a mockery of the judicial system. See Slater, 871 F.3d at 1180.

The requisite intent may be inferred from all the facts and circumstances. Id. at

1185. Courts in various contexts have also considered such additional factors as

the degree of the inconsistency between the two positions, whether the prior

inconsistent position was due to mistake or inadvertence, whether and how the

party corrected the prior misstatements or omissions, the party’s level of

sophistication, whether the party’s assertion of the inconsistent position in the prior

proceeding was successful, and whether he or she would gain an unfair advantage

by the change of position. See, e.g., Korman v. Iglesias, 778 F. App’x 680, 682 (11th

Cir. 2019); Slater, 871 F.3d at 1176-77.

Defendants argue that judicial estoppel should apply here to preclude Payrow

from first testifying under oath to avoid a criminal conviction that he had no

encounter with Deputy Cloud that night, and then in this case asserting that Cloud

stopped him and shot him without sufficient grounds or for no reason at all, in order

to obtain a hefty civil judgment for damages. Payrow’s response focuses on the fact

that the application of estoppel is discretionary and argues that Payrow should not

be considered as sufficiently “sophisticated” for the application of judicial estoppel

by reason of his mental health issues. See Slater, 871 F.3d at 1176-77 (taking into

account the debtor’s sophistication in assessing whether his failure to disclose claim

in bankruptcy filings evidenced an intent to make a mockery of the judicial system).

The Court concludes judicial estoppel should be applied here. First, the

inconsistency between Payrow’s testimony under oath in his criminal trial and his

position now is stark. Payrow now asserts that Cloud stopped him and then shot

him without a sufficient reason, in one version doing so without warning as he

walked away from Cloud. However, to avoid his criminal conviction, Payrow

testified he was not even at the location where the incident with Cloud occurred and

that some other individual – not Cloud – shot him.

Second, the Court finds from all the facts and circumstances that Payrow had

the necessary intent to make a mockery of the judicial system. Payrow clearly had

a motive to offer the story he did at the criminal trial in his successful effort to avoid

conviction, and a motive in this case to offer a very different account in order to

obtain a damage award. These motives and the timing of his divergent positions

suggest a party who is “changing positions according to the exigencies of the

moment.” See New Hampshire, 532 U.S. at 749. Payrow has not asserted that he

made a mistake in his prior testimony, nor has he admitted that he did not tell the

truth then. He has still not explained the inconsistency. Instead, he avoids the

need to do so by the expedient of saying that he fails to remember the prior

testimony.

Payrow argues that his longstanding mental health issues weigh against a

finding of intent, pointing to a diagnosis of schizophrenia with delusions and fixated

beliefs. Payrow offers the Court no explanation as to how his specific mental

health issues allow the Court to conclude his apparently expedient change of

position resulted from “unthinking or confused blunder” rather than “cold

calculation.” Accordingly, the Court concludes that on balance and under all the

circumstances, the doctrine of judicial estoppel applies here, and summary

judgment is due to be granted on that basis.

Summary judgment is alternatively appropriate on other grounds, as

discussed below. In particular, to the extent judicial estoppel might be deemed

inappropriate on the ground that Payrow’s mental illness renders him unable to

perceive or remember events or understand the duty to tell the truth, his testimony

to the version of events given in his deposition would not be competent or

admissible, and the other evidence in this case is insufficient to create an issue of

fact for trial.

Payrow’s Testimony Does Not Create a Genuine Issue of Material Fact.

Defendants argue that if summary judgment is not granted based on judicial

estoppel, it could only be based on Payrow’s mental health problems, and that the

record demonstrates Payrow is incompetent to testify to the version(s) of events

given in his deposition. Rule 601 states that “[e]very person is competent to be a

witness unless these rules provide otherwise.” The Eleventh Circuit has held that,

“[n]otwithstanding Rule 601, a court has the power to rule that a witness is

incapable of testifying.” United States v. Gates, 10 F.3d 765, 766 (11th Cir. 1993);

see also United States v. Khoury, 901 F.2d 948, 966 (11th Cir. 1990) (holding that

Rule 601 creates only a presumption of competence).

The traditional test for competence is whether the witness has the capacity to

perceive, remember, narrate, and understand the duty to tell the truth. See 1

McCormick On Evid. § 62 (8th ed. 2022); Sinclair v. Wainwright, 814 F.2d 1516,

1522 (11th Cir. 1987) (noting that “a lunatic may be allowed to testify if he is able to

[comprehend] the obligation of an oath and give a correct account of matters he has

seen or heard”) (quoting Shuler v. Wainwright, 491 F.2d 1213, 1224 (5th Cir. 1974)).

Florida law expressly retains these common law requirements. See § 90.603, F.S.;

Clinton v. State, 43 So. 312, 215 (Fla. 1907); Charles Ehrhardt, West’s Fla. Pr.

Series – Evidence § 601.1 (2023 ed.).

A number of facts support a conclusion that Payrow is not competent.

Payrow starkly changed his position between his criminal trial and his current

lawsuit (assuming, arguendo, the Court is wrong in concluding these discrepancies

result from calculation on Payrow’s part). He has offered contradictory allegations

and statements as whether he was walking towards or away from Cloud when he

was shot. He stated in his deposition that his criminal trial testimony was truthful

even though it contradicts what he now claims to be the truth, and even though he

says he cannot recall when he said at trial. Defendants point to other

contradictions indicating that Payrow cannot recall what happened or understand

his obligation to tell the truth, or both. Payrow himself in seeking to avoid

Defendants’ judicial estoppel arguments points to a diagnosis by a defense expert

near the time of his deposition in this case of “acute schizophrenia – multiple

episodes (on-going), delusions with fixed false beliefs and disorganized speech.”

There are certainly responses that could be made to these arguments, but

Payrow has decided not to make them, most likely a strategic decision to bolster his

opposition to judicial estoppel. Nowhere in his responses opposing Defendants’

motions for summary judgment does Payrow argue that his deposition testimony is

admissible or creates an issue of fact. Instead, he relies on Rojas’s and Cloud’s

version of events. At the hearing on the summary judgment motion, Payrow’s

counsel avoided answering the Court’s question as to whether Payrow was

competent to testify, and he said only that Payrow as able to take the stand and

provide “a version” of events, although he indicated it was unclear whether anyone

should or would believe it.

While ordinarily it might be the better practice to hold a hearing in which the

Court could examine Payrow, under these circumstances, that is unnecessary

because Payrow has waived any argument that his deposition testimony is

competent or creates an issue of fact. See, e.g., Transamerica Leasing, Inc. v. Inst.

of London Underwriters, 267 F.3d 1303, 1308 n.1 (11th Cir. 2001) (holding that

arguments not made in a summary judgment response are waived).

The same is true with respect to Defendant’s argument that Payrow’s

deposition testimony should not be credited under Scott v. Harris, 550 U.S. 372

(2007). Scott held that “[w]hen opposing parties tell two different stories, one of

which is blatantly contradicted by the record, so that no reasonable jury could

believe it, a court should not adopt that version of the facts for purposes of ruling on

a motion for summary judgment.” Id. at 380. While Scott involved testimony that

was contradicted by a videotape recording of the events, it is arguably not limited to

that situation. See, e.g., Johnson v. Glass, No. 3:15-cv-324-J-32JBT, 2017 WL

3723369, at *7 (M.D. Fla. Aug. 29, 2017) (noting that the court did not view Scott as

limited to cases involving a videotape of the event and holding that “[i]n light of the

evidence presented by Defendants and Plaintiff’s failure to provide any evidence

other than his own uncorroborated and internally inconsistent testimony, no

reasonable jury could find for Plaintiff in this case.”); Taylor v. Ridley, 904 F. Supp.

2d 222, 232 (E.D.N.Y. 2012) (holding the case was an “extraordinary” one in which

no reasonable jury could find for the plaintiff on his excessive force claim, which

relied almost entirely on upon uncorroborated allegations that contradicted his

testimony at his criminal trial and in his deposition). Once again, as on the issue

of Payrow’s competence to testify, while arguments could be made on the other side

of this issue, Payrow has decided not to make them.

In short, Payrow has not responded to Defendants’ arguments that his

deposition testimony is incompetent and that no rational jury could accept his

version of events. He also does not rely on the version of events he offered in his

deposition to try to create an issue of fact; he relies instead on the accounts of Cloud

and Rojas. Accordingly, for purposes of summary judgment, the Court will

consider only the versions of events offered by Cloud and by Rojas, and it will not

consider Payrow’s deposition testimony. Based on those accounts, as discussed

below, Defendants are entitled to summary judgment on both the federal and state

law claims.

Cloud is Entitled to Qualified Immunity on the § 1983 Claims Against Him.

Payrow has sued Cloud under § 1983 for Fourth amendment violations

involving the use of excessive force and false arrest. Cloud moves for summary

judgment based on qualified immunity. “Section 1983 creates a private cause of

action for deprivations of federal rights by persons acting under color of state law.”

Laster v. City of Tampa Police Dep’t, 575 F. App’x 869, 872 (11th Cir. 2014); see 42

U.S.C. § 1983. The Fourth Amendment’s guarantee against unreasonable searches

and seizures includes the right to be free from excessive force and the right to be

free from arrest without probable cause. See, e.g., Richmond v. Badia, 47 F.4th

1172, 1179 (11th Cir. 2022).

In § 1983 cases, when a defendant raises the issue of qualified immunity and

demonstrates that he was acting within the scope of his discretionary authority, the

plaintiff bears the burden of overcoming that defense. See, e.g., Lee v. Ferraro, 284

F.3d 1188, 1194 (11th Cir. 2002). A government official is completely protected

from suit if his conduct “does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” Vinyard v.

Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)).

Importantly, “[t]he determination of whether a police officer's actions were

constitutional must be undertaken from the perspective of a reasonable officer on

the scene under the same conditions, rather than with the 20/20 vision of hindsight,

as the former allows for proper appreciation of the fact that police officers are often

forced to make decisions about the amount of force that is necessary in situations

that are tense, uncertain, and rapidly evolving.” Smith v. LePage, No. 1:12-CV-

0740-AT, 2015 WL 13260394, at *1 (N.D. Ga. Mar. 31, 2015). A police officer will

be entitled to qualified immunity “if an objectively reasonable officer in the same

circumstances could have believed that the force used was not excessive.” Vinyard,

311 F.3d at 1346 (citing Anderson v. Creighton, 483 U.S. 635, 638-41 (1987)).

When analyzing whether a defendant is entitled to qualified immunity, the

court considers two questions: (1) whether the facts, taken in the light most

favorable to the plaintiff, show that the defendant's conduct violated the plaintiff's

constitutional rights, and (2) whether the plaintiff's rights were clearly established.

See, e.g., Saucier v. Katz, 533 U.S. 194, 201-02 (2001); Fils v. City of Aventura, 647

F.3d 1272, 1287 (11th Cir. 2011); Hadley v. Gutierrez, 526 F.3d 1324, 1329 (11th

Cir. 2008).1

1 Courts may exercise their discretion when deciding which of the two prongs should be

addressed first, depending upon the unique circumstances in each particular case.

Pearson v. Callahan, 555 U.S. 223, 236 (2009); Corbitt v. Vickers, 929 F.3d 1304, 1311 (11th

Cir. 2019). Accordingly, a court “may grant qualified immunity on the ground that a

purported right was not ‘clearly established’ by prior case law, without resolving the often

more difficult question whether the purported right exists at all.” Reichle v. Howards, 566

U.S. 658, 665 (2012).

“For a right to be clearly established, ‘[t]he contours of the right must be

sufficiently clear that a reasonable official would understand that what he is doing

violates that right.’” Corbitt v. Vickers, 929 F.3d 1304, 1311 (11th Cir. 2019)

(quoting Anderson, 483 U.S. at 640). Officials are not required to be creative or

imaginative in drawing analogies from decided cases. Id. at 1311. An official’s

knowledge of an abstract right is not the equivalent of knowledge that the conduct

at issue infringes that right. Id. at 1312. A plaintiff may show that a

constitutional right is clearly established by: (1) pointing to a materially similar

case; (2) pointing to a broader clearly established principle that controls the novel

facts of the situation; (3) or demonstrating that the conduct so obviously violates the

constitution that prior case law is unnecessary.” Terrell v. Smith, 668 F.3d 1244,

1255-56 (11th Cir. 2012) (internal quotation omitted).

The Court has little trouble concluding that if, as Deputy Cloud testified,

Payrow ignored Cloud’s commands to stop and then charged at him without

warning, wielding a screwdriver or other weapon in a threatening manner, Cloud’s

actions in shooting Payrow were objectively reasonable and did not constitute

excessive force. In Nicarry v. Cannaday, 260 F. App’x 166, 170 (11th Cir. 2007), for

example, the Eleventh Circuit affirmed summary judgment for defendant sheriff’s

deputy on claim of excessive force where the plaintiff charged from a shed at law

enforcement officers at full speed while holding a screwdriver. “It is not

constitutionally unreasonable for an officer to use deadly force ‘[w]here the officer

has probable cause to believe that the suspect poses a threat of serious physical

harm, either to the officer or to others,’ or ‘if the suspect threatens the officer with a

weapon . . . and if, where feasible, some warning has been given.’” Id. (quoting

Tennessee v. Garner, 471 U.S. 1, 11-12, (1985).

Payrow does not argue that under the foregoing circumstances there would

be a jury question as to the reasonableness of Cloud’s actions. However, he points

to the testimony of Rojas, who said he did not see a weapon in Payrow’s hand. It is

important note that Rojas’s statement is not necessarily inconsistent with Cloud’s

version. It was night, Rojas was some distance from Cloud and Payrow, he was not

focused on whether Payrow had a weapon, and as Rojas put it, “[e]verything

happened so fast.” Rojas did not see Cloud draw his revolver, either. But even if

Rojas’s testimony creates an issue of fact as to whether Payrow held a screwdriver

or other weapon when he charged at Cloud, the Court concludes that Cloud did not

violate a clearly established constitutional right. Even assuming that Payrow had

no weapon, Cloud was alone, without backup, late at night, facing an obviously

disturbed individual claiming to be with the FBI, who charged at him suddenly and

without warning as if to knock him to the ground. Payrow has cited no case law

showing that an individual in his position and under these circumstances would

have constitutional right to be free from the application of deadly force, much less a

clear right.2

2 Payrow’s cited cases are easily distinguishable. See, e.g., Teel v. Lozada, 826 F. App’x

880, 883 (11th Cir. 2020) (officer shot diminutive plaintiff without warning when she was

ten feet away, walking gradually, and made no sudden movements); Greer v. Ivey, 767 F.

App’x 706, 709 (11th Cir. 2019) (physical evidence called into question whether the plaintiff

was charging toward the deputies when they opened fire); Clawson v. Rigney, 777 F. App’x

381, 385 (11th Cir. 2019) (“Nor does the footage show Whidden running directly toward

Accordingly, Cloud is entitled to summary judgment on Payrow’s § 1983

claim for excessive force under the Fourth Amendment. Cloud is also entitled to

summary judgment on the false arrest claim. On the undisputed evidence, even

under Rojas’s account, Payrow physically assaulted a police officer. That is

probable cause to arrest him, and his false arrest claim therefore fails. See Crocker

v. Beatty, 995 F.3d 1232, 1245 (11th Cir. 2021) (holding that probable cause bars a

claim for false arrest under Florida law just as it does under federal law).

The Sheriff is Entitled to Summary Judgment on the State Law

Claims Against Him.

Payrow asserts claims against the Sheriff for excessive force, false arrest, and

false imprisonment. The Sheriff argues that he is entitled to immunity under §

768.28(9)(a), F.S., and alternatively that no evidence supports Payrow’s claims.

While the immunity question would ordinarily be considered prior to the merits

issue, the Court will address these questions in reverse order.

To succeed on an excessive force claim under Florida law, the plaintiff must

show that the law enforcement officer’s actions were objectively unreasonable under

the circumstances facing the officer. See, e.g., City of Miami v. Sanders, 672 So. 2d

46, 47 (Fla. 3d DCA 1996); City of Miami v. Albro, 120 So. 2d 23, 26 (Fla. 3d DCA

1960). The Sheriff, relying on Deputy Cloud’s account that Payrow attacked him

Rigney in a manner that suggested he intended to attack him.”); McKinney by McKinney v.

DeKalb Cty., Ga., 997 F.2d 1440, 1443 (11th Cir. 1993) (“As alleged by the plaintiffs,

however, Abdul had previously put down his knife and was merely shifting position, not

threatening the safety of any persons, when Officer Nelsen shot him.”).

with a weapon, argues there is no evidence from which a jury could conclude Deputy

Cloud’s actions were unreasonable. The Court will assume here, arguendo, that

Rojas’s testimony creates an issue of fact as to whether Payrow wielded a

screwdriver or other weapon. Even so, the Court concludes that Cloud’s actions

were objectively reasonable as a matter of law. As discussed above, Deputy Cloud

was alone with Payrow on the street, late at night, and Payrow appeared to be

disturbed. Payrow then suddenly charged Cloud in a hostile manner as if to tackle

him, and Cloud had only a split second to act to avoid being taken to the ground by

Payrow (as, in fact, he was), and thereafter possibly disarmed and severely harmed.

There is no evidence suggesting it would have been physically possible for Cloud to

have somehow sidestepped Payrow’s attack, much less that he had sufficient time to

“to calculate angles and trajectories to determine whether he was a few feet outside

of harm's way” in order to avoid using deadly force. See Tillis on behalf of

Wuenschel v. Brown, 12 F.4th 1291, 1299 (11th Cir. 2021) (addressing qualified

immunity under § 1983).

Payrow’s opposition to the Sheriff’s summary judgment relies on Rojas’s

version of events but offers no explanation as to how a jury could conclude that

Cloud’s actions were unreasonable. Accordingly, the excessive force claim fails.

As to the claims of false arrest and false imprisonment, under Rojas’s account,

Payrow physically assaulted a police officer. That is certainly probable cause to

arrest Payrow.3 See Crocker, 995 F.3d at 1245.

3 Much of Payrow’s response to Defendants’ motions for summary judgment amounts to an

effort to recast this case as one alleging that Cloud should not have initiated contact with

The Sheriff’s motion argues that he is entitled to immunity if the allegations

in the amended complaint are accurate. However, the record evidence has shown

that the allegations of the complaint are not accurate, and it is the record, not the

pleadings, that governs at the summary judgment stage. Because the Court agrees

with the Sheriff’s argument that the evidence is insufficient to support a finding

that Cloud acted unreasonably or without probable cause, the Court necessarily

concludes there is no evidence that Cloud acted “in bad faith or with malicious

purpose or in a manner exhibiting wanton and willful disregard of human rights,

safety, or property” so as to immunize the Sheriff from liability under § 768.28(9)(a),

F.S. Accordingly, the Court concludes judgment for the Sheriff should be entered

on the merits rather than on the basis of immunity.

Accordingly it is

ORDERED, ADJUDGED, and DECREED:

1. “Defendant’s Dispositive Motion for Summary Judgment and

Incorporated Memorandum of Law” (Doc. 69) and “Defendant’s Dispositive

Motion for Summary Judgment and Incorporated Memorandum of Law”

(Doc. 71) are GRANTED.

2. The Clerk is DIRECTED to enter final judgment against Plaintiff Babak

Payrow and in favor of Defendant Chad Chronister in his official capacity

Payrow or ordered him to stop in the first instance as opposed to alleging a claim for false

arrest following the violent encounter between Payrow and Cloud. This claim was not pled

in Plaintiff’s original complaint or amended complaint, and the Court declines to consider

it.

as Sheriff of Hillsborough County and in favor of Defendant David Cloud,

in his individual capacity.

3. Following entry of judgment, the Clerk is directed to terminate any

pending motions and deadlines and thereafter close this case.

DONE and ORDERED in Chambers in Tampa, Florida, on this 30th day of

September, 2024.

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TOM BARBER

UNITED STATES DISTRICT JUDGE

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