Cross v. Johnson

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 23-CV-60393-LEIBOWITZ/STRAUSS

DEMETRIUS CROSS,

Plaintiff,

v.

JERMAINE JOHNSON, et al.,

Defendants.

/

REPORT AND RECOMMENDATION

THIS MATTER came before the Court upon Defendant, Jermaine Johnson’s Motion for

Attorney’s Fees (“Motion”). [DE 77]. The Motion has been referred to me to take all action as

required by law. [DE 78]. I have reviewed the Motion and the record in this case.1 For the reasons

discussed herein, I respectfully RECOMMEND the Motion be DENIED.

BACKGROUND

Plaintiff, Demetrius Cross (“Cross”), initially filed suit against Defendants in Florida state

court in May 2019. [DE 1] at 1. After two amendments, Cross filed his Second Amended

Complaint alleging eight causes of action against Defendant Jermaine Johnson (“Johnson”) and

one claim of negligent medical evaluation against Defendant Gregory Tony in his official capacity

as Broward County Sheriff (“BSO”). [DE 1–2]. Two of the counts Cross alleged against Johnson

were brought under 42 U.S.C. § 1983 – Count III, alleging a claim for false arrest, and Count IX,

1 Plaintiff has not filed a Response to the Motion, and the failure to do so “may be deemed

sufficient cause for granting the motion by default.” S.D. Fla. L.R. 7.1(c)(1); Pais v. Home Depot

U.S.A., Inc., No. 21-20824-CIV, 2023 WL 11878294, at *1 (S.D. Fla. May 25, 2023). However,

due to the policy considerations of awarding attorney’s fees under 42 U.S.C. § 1988, I nevertheless

have evaluated the Motion on the merits despite the lack of a Response from Plaintiff.

alleging a claim for unreasonable use of force. The remaining counts against Johnson were state

law claims: assault, battery, false imprisonment, conversion, intentional infliction of emotional

distress, and malicious prosecution. Id.

On February 28, 2023, Defendants removed the action to this Court. [DE 1]. The case

progressed with minimal docket activity until the eve of the dispositive motions deadline.

Defendants then moved for summary judgment on all counts. [DE 47]. In response to Defendants’

Motion for Summary Judgment and Statement of Material Facts, Cross filed his Statement of

Material Facts. [DE 59]. Unfortunately, Cross’ Statement of Material Facts disregarded numerous

requirements of Federal Rule of Civil Procedure 56 and Local Rule 56.1. Due to the multitude of

deficiencies within Cross’ Statement of Material Facts, I found it appropriate to disregard the

twenty-two non-compliant facts and deem admitted all of Defendants’ facts that were “supported

by properly cited record evidence.” See S.D. Fla. L.R. 56.1(c), (d). I then recommended granting

summary judgment on the federal claims and remanding the remaining state law claims based on

the following facts, and the Court adopted the recommendation in full. [DE 73, 75].

On June 23, 2015, Cross was driving a vehicle in North Lauderdale, Florida. [DE 73] at 3.

Cross’ cousin, Zevante Bharat (“Bharat”), was a passenger in the vehicle and was not wearing his

seatbelt. Id. Johnson is a Deputy Sheriff with the Broward County Sheriff’s Office. Id. On June

23, 2015, Johnson, while driving in the same area as Cross, observed that Bharat was not wearing

a seatbelt. Id. Johnson noticed Cross and Bharat looking at him and signaled to them to have

Bharat put on his seatbelt. Id. In response, Cross lowered his window and began recording

Johnson with his phone. Id. Johnson then told Cross and Bharat to put on Bharat’s seatbelt. Id. ¶

10.

Johnson and Cross each slowed their respective vehicles, eventually coming to a complete

stop in the middle of a two-lane street. Id. at 4. Once Johnson’s and Cross’ vehicles were stopped

side-by-side, Johnson, with his police lights flashing (on both the front and side of his vehicle),

instructed Cross to “pull over” and “move [his] car up” several times.2 Id.at 4. But Cross did not

pull over. Instead, he responded, “No, you pull up, and then I’m a pull up, man.” Id. After some

back-and-forth between Johnson and Cross, Johnson exited his vehicle and approached Cross’

vehicle. Id. Johnson again instructed Cross to “pull [his] car up” several times. Id. Cross

continued to argue with Johnson about moving the vehicle up and said he was “going to pull [the

vehicle] up” several times but never moved the vehicle. Id. After Johnson repeatedly ordered

Cross to “pull [his] car up,” while Cross continued to say he was going to move up but never did,

Cross ended the interaction with “Didn’t you hear me say I’m about to pull up, man? You better

be ready, boy.” Id.

Johnson asserted (and Cross did not sufficiently dispute) that Cross then accelerated his

vehicle, sped off, and only stopped once Johnson activated his siren. Id. The audio recording

indicated that about twenty to thirty seconds elapsed between Cross’ last interaction with Johnson

before Cross moved his vehicle and when Johnson approached Cross’ vehicle on foot the second

time. Id.

When Cross pulled over, Johnson approached the vehicle and instructed Cross to put his

window down, hang up his phone, and put it away. Id. at 5. Johnson also instructed Cross to

unlock his door. Id. Cross did not hang his phone up nor unlock his door, but Johnson was able

to reach his arm into the car, through a small opening in the window, and unlock the door. Id.

2 The interaction was partially captured with Cross’ cell phone and most of the recording only

contains audio without video.

Johnson attempted to bring Cross out of the vehicle, but Cross resisted. Id. To remove Cross from

the vehicle, Johnson first pulled Cross by his shirt (unsuccessfully), and then by his hair. Id. While

Johnson and Cross struggled, Johnson told Cross to “get out of the car.” Id. After Johnson

removed Cross from the vehicle, Cross landed facedown on the ground, and Johnson placed his

knee in the middle of Cross’ back (for a few seconds) while handcuffing him. Id.

In his Response to Defendants’ Motion for Summary Judgment, Cross argued that “the

success of Defendants[’] Motion for Summary Judgment [was] entirely dependent upon whether

the court determine[d] that Johnson had probable cause to arrest [Cross].” [DE 56] at 3. Cross

then exclusively focused his argument on why he believed Johnson did not have probable cause to

arrest him. Id. In doing so, Cross relied heavily on the fact that the judge in his state criminal trial

had granted Cross a directed verdict. Id. That judge’s ruling was based on his finding that Cross

had not failed to pull his car over and that Johnson had not given Cross an order to pull over. Id.

After reviewing the arguments from the parties and the above facts, I found that Cross’ §

1983 false arrest claim failed because Johnson had probable cause – and (for purposes of

considering a qualified immunity defense) at the very least arguable probable cause – to arrest

Cross. [DE 73] at 7. The undisputed facts established that Johnson witnessed Cross and Bharat

violate at least two traffic laws. Id. at 9. That permitted Johnson to order Cross to pull over. Id.

Based on the undisputed facts in the record here, Johnson ordered Cross to pull over, but Cross did

not (instead arguing with Johnson, even while claiming he was going to pull over). Id. Once Cross

did eventually stop, Cross did not follow Johnson’s additional lawful commands and resisted. Id.

at 10–11, n.6. These facts provided probable cause for a violation of Florida Statute § 843.02,

which authorizes arrest for knowingly obstructing an officer in the performance of his duties,

including by refusing to obey a police officer’s lawful command. Id. at 11–12.

I also addressed why the directed verdict in Cross’s state criminal trial did not control the

outcome here. First, I explained that Cross had presented no authority for the premise that the

state ruling had binding or preclusive effect on this case, particularly given that the burdens of

proof in the two cases were different. I also respectfully disagreed with the state trial court’s

conclusion based on the factual record before me. Id. at 13–14. Notably, it was entirely unclear

from the filings in this case (particularly Cross’ deficient response Statement of Material Facts)

what evidence was (or was not) presented in the state criminal trial.

I further found that Cross’ § 1983 excessive force claim failed for the same reasons as his

false arrest claim. While Johnson argued the excessive force claim as if Cross was making a

“genuine” claim for excessive force (i.e. a claim that the officer used excessive force irrespective

of whether he had probable cause to make an arrest), it appeared from Cross’s response that Cross

was asserting an “artificial claim,” which is when a plaintiff alleges that an officer’s use of force

is excessive only because an arrest was not supported by probable cause. Id. at 15. A plaintiff’s

artificial claim of excessive force is subsumed in the illegal stop or arrest claim and is not a discrete

excessive force claim. Id. To the extent Cross was asserting a genuine claim of excessive force,

Cross had abandoned that argument given the content of his response brief. Id. at 16.

After securing summary judgment on the two federal counts in his favor, Johnson now

seeks an award of attorney’s fees. [DE 77].

ANALYSIS

Johnson moves for attorney’s fees under 42 U.S.C. § 1988 as the prevailing party on Cross’

§ 1983 claims. Under the American Rule, “[o]ur legal system generally requires each party to bear

his own litigation expenses, including attorney’s fees, regardless [of] whether he wins or loses.”

Fox v. Vice, 563 U.S. 826, 832 (2011). However, § 1988 allows the award of “a reasonable

attorney’s fee” to “the prevailing party” in numerous types of civil rights cases, including suits

brought under § 1983. In Christiansburg Garment Co. v. Equal Employment Opportunity

Comm’n, 434 U.S. 412 (1978), the Supreme Court emphasized that § 1988 effectuates Congress’

intent to “make it easier for a plaintiff of limited means to bring a meritorious suit” while also

“deter[ring] the bringing of lawsuits without foundation by providing that the prevailing party —

be it plaintiff or defendant — could obtain legal fees.” Id. at 420 (internal quotations omitted).

Under § 1988, “a prevailing defendant is entitled to recover attorney’s fees if ‘the plaintiff’s

action was frivolous, unreasonable, or without foundation, even though not brought in subjective

bad faith.’” Baker v. Alderman, 158 F.3d 516, 524–25 (11th Cir. 1998) (quoting Hughes v. Rowe,

449 U.S. 5, 14 (1980)). “The fact that a plaintiff may ultimately lose his case is not in itself a

sufficient justification for the assessment of fees.” Hughes, 449 U.S. at 14; see also O’Neal v.

DeKalb County, 850 F.2d 653, 658 (11th Cir. 1988) (“Simply because the district court granted

the defendants’ motion for summary judgment does not mean that the plaintiffs’ action was

frivolous.”). Indeed, the Supreme Court has cautioned that “a district court resist the

understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff

did not ultimately prevail, his action must have been unreasonable or without foundation.”

Christiansburg Garment, 434 U.S. at 421–22.

Instead, frivolity should be determined on a case-by-case basis. Beach Blitz Co. v. City of

Miami Beach, Fla., 13 F.4th 1289, 1301–02 (11th Cir. 2021). The Eleventh Circuit has highlighted

three important factors that shed light on whether a claim is frivolous: “(1) whether the plaintiff

established a prima facie case; (2) whether the defendant offered to settle; and (3) whether the trial

court dismissed the case prior to trial or had a full-blown trial on the merits.” Id. at 1302 (quoting

Sullivan v. Sch. Bd. of Pinellas Cnty., 773 F.2d 1182, 1189 (11th Cir. 1985)).

No one Sullivan factor is dispositive; “[e]ven if all the factors point toward awarding fees,

the court must still consider the case as a whole and determine whether the claim was entirely

without foundation.” Hamilton v. Sheridan Healthcorp, Inc., 700 Fed. Appx. 883, 885 (11th Cir.

2017). These factors permit district courts to exercise their discretion because they are “general

guidelines only, not hard and fast rules.” See Sullivan, 773 F.2d at 1189. Recently, the Eleventh

Circuit has added a fourth “particularly important” factor which asks, “whether there was enough

support for the claim to warrant close attention by the court.” Beach Blitz, 13 F.4th at 1302; see

also Hamilton, 700 Fed. Appx. 883, 885 (“As we have explained, a claim is not frivolous when it

is ‘meritorious enough to receive careful attention and review.’”) (quoting Busby v. City of

Orlando, 931 F.2d 764, 787 (11th Cir. 1991)). When determining frivolity, the district court must

“view the evidence in the light most favorable to the non-prevailing plaintiff.” Johnson v. Florida,

348 F.3d 1334, 1354 (11th Cir. 2003).

As a preliminary matter, Johnson is undoubtedly the prevailing party as the Court granted

summary judgment in his favor on all of the federal claims. [DE 73, 75]. However, after

considering the four factors the Eleventh Circuit has identified, as well as the facts and

circumstances of this case in light of the “stringent standard” put forth by the Supreme Court, I

find that Cross’ claims were not frivolous.

The first and third Sullivan factors — whether the plaintiff established a prima facie case

and whether the trial court dismissed the case prior to trial on the merits — do weigh in Johnson’s

favor. However, the second factor — whether the defendant offered to settle — is neutral at best.

Johnson argues that the second prong weighs in his favor because “the Defendants offered

to settle the instant case” during two mediations “for an undisclosed amount of money, which

[Cross] elected not to take.” [DE 77] at 3. The Eleventh Circuit has explained that “the amount

of the offer is a necessary factor in evaluating whether a settlement offer militates against a

determination of frivolity.” Quintana v. Jenne, 414 F.3d 1306, 1310 (11th Cir. 2005); see also

Lawver v. Hillcrest Hospice, Inc., 300 F. App’x 768, 774 (11th Cir. 2008). When there is an

“absence of evidence of an offer of a substantial amount in settlement, this factor does not support

either party.” Quintana, 414 F.3d at 1310. Here, neither Cross nor Johnson provides any

information indicating the amount of Johnson’s purported settlement offer. Thus, while it is

possible that the second Sullivan factor could weigh in either Cross’ or Johnson’s favor (depending

on the amount offered), the lack of concrete evidence and information on the settlement offer

neutralizes this factor, and it consequently does not support either party.

However, the “particularly important” fourth factor — whether there was enough support

for the claim to warrant close attention by the court — and the other facts and circumstances of

this case weigh against a finding of frivolity. Notably, Johnson fails to address this factor in the

Motion. See [DE 77]. Allegations, regardless of the eventual outcome, which deserved and

received careful attention of the court, are not groundless or without foundation. See Hughes, 449

U.S. at 14. Although this Court ultimately determined that Cross could not support a prima facie

case for either § 1983 claim, making this determination required careful consideration and review.

This litigation necessitated nuanced interpretations of Florida statutes and analysis of the

proportionality of Johnson’s conduct towards Cross as it pertained to noncriminal traffic

infractions. See Alvarez v. Sch. Bd. of Miami-Dade Cnty., No. 17-22556-CIV, 2021 WL 1099842,

at *2–3 (S.D. Fla. Mar. 23, 2021) (finding plaintiff’s argument not frivolous because the litigation

involved nuanced interpretation of Florida legislation and the interplay between various Miami-

Dade County School Board procedures and federal law). While Cross’s cell phone recording

provided some clear, objective evidence of Johnson and Cross’s interaction, evaluating that

interaction in light of the Florida statutes and federal law required the Court to carefully review

and parse that recording to understand the precise timeline of events.

Though I ultimately concluded, after that careful evaluation, that Johnson had probable

cause to support his actions, it was not an overwhelming case, particularly given the brevity of

Cross and Johnson’s interaction. Indeed, had Cross properly presented and supported his response

Statement of Material Facts, it may have been an even closer call. Furthermore, although I reached

the conclusion regarding arguable probable cause for qualified immunity purposes as an alternative

reason for awarding Johnson summary judgment, this was not a case where addressing arguments

for qualified immunity was completely unnecessary. Cf O’Boyle v. Thrasher, 647 Fed. Appx. 994,

996 (11th Cir. 2016) (upholding district court’s determination of frivolity in part because the

allegations were so insufficient that the district court found addressing qualified immunity

unnecessary). In short, while the decision to grant Johnson summary judgment was undoubtedly

correct, it was not so obvious as to render Cross’s claim frivolous.

Additionally, while this Court respectfully declined to follow the state criminal trial judge’s

ruling, the fact that the judge analyzed the facts of the case and came to a different conclusion

weighs against finding Cross’s claim frivolous.3 Busby, 931 F.2d 764, 787 (11th Cir. 1991) (“The

fact that one judge on this panel disagrees over the disposition of the directed verdict against

[Defendant] demonstrates that this Court had to consider [Plaintiff’s] claims against him very

carefully.”); O’Neal, 850 F.2d at 658 (holding that a plaintiff’s argument is not frivolous when the

cause of action is plausible).

3 Again, I must emphasize that neither party made clear what evidence was, or was not, before the

state trial court compared to the record here. Cross’s (deficient) response Statement of Material

Facts quoted the judge’s ruling, but neither that ruling nor any other portion of the record here

made clear what testimony or evidence that judge relied upon. Therefore, it is unclear what

evidence may have persuaded the state criminal trial judge to direct a verdict for Cross.

Finally, § 1988’s purpose is to “ensure effective access to the judicial process for persons

with civil rights grievances.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (internal quotations

omitted). This case was brought by a citizen against a police officer in an effort to protect his

Constitutionally-guaranteed rights. Importantly, the citizen had already obtained an order from a

judge finding that the officer had illegally arrested him. Even though this Court disagreed with

that finding, the state court’s ruling gave Cross reason to believe his claim was not “frivolous,

unreasonable, or without foundation.” Moreover, even though Cross’ conduct supported probable

cause for an arrest, Johnson’s conduct (based on the evidence presented here) was not the model

of police behavior. In short, this is not the kind of case where attorney’s fees should be awarded

in order to deter future frivolous claims. To the contrary, awarding Defendant attorney’s fees here

could deter other similarly situated plaintiffs from “bringing objectively reasonable — though

ultimately unsuccessful — suits of a similar nature, thereby thwarting congressional intent that §

1988 be a means to encourage vigorous enforcement of civil rights.” Alvarez, 2021 WL 1099842,

at *3.

CONCLUSION

For the reasons discussed above, I respectfully RECOMMEND that the Motion [DE 77]

be DENIED.

The parties will have fourteen (14) days from the date of being served with a copy of this

Report and Recommendation within which to file written objections, if any, with the Honorable

David S. Leibowitz, United States District Judge. Failure to timely file objections shall bar the

parties from a de novo determination by the District Judge of an issue covered in the Report and

shall bar the parties from attacking on appeal unobjected-to factual and legal conclusions contained

in this Report except for plain error if necessary in the interests of justice. See 28 U.S.C. §

636(b)(1); Thomas v. Arn, 474 U.S. 140, 149 (1985); Henley v. Johnson, 885 F.2d 790, 794 (11th

Cir. 1989); 11th Cir. R. 3-1.

DONE AND SUBMITTED in Fort Lauderdale, Florida this 4th day of October 2024.

ared M. Strauss

United States Magistrate Judge

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