Mehrnoosh Payrow v. Chad Chronister

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-13567

Non-Argument Calendar

____________________

BABAK PAYROW,

Plaintiff,

MEHRNOOSH PAYROW,

Plaintiff-Appellant,

versus

CHAD CHRONISTER,

in his official capacity as Sheriff of Hillsborough County,

DAVID CLOUD,

in his individual capacity,

Defendants-Appellees.

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2 Opinion of the Court 24-13567

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:22-cv-00520-TPB-UAM

____________________

Before WILLIAM PRYOR, Chief Judge, and JILL PRYOR and BRASHER,

Circuit Judges.

PER CURIAM:

Mehrnoosh Payrow, as guardian of Babak Payrow, appeals

the summary judgment in favor of Sheriff Chad Chronister and

Deputy David Cloud and against Babak Payrow’s complaint alleg-

ing claims of a seizure and use of excessive force in violation of the

Fourth Amendment and excessive force, false arrest, and false im-

prisonment under Florida law. See 42 U.S.C. § 1983. We affirm.

I. BACKGROUND

In 2020, Babak Payrow was tried for attempted murder of a

law enforcement officer. The state trial court concluded he was

competent to stand trial. Payrow proceeded to trial represented by

counsel.

Deputy Cloud testified that he decided to stop when he saw

Payrow sitting on an electrical box in a dark area. Payrow initially

walked away from Deputy Cloud’s car. When Deputy Cloud

stopped his car and turned his spotlight on, Payrow began to walk

towards the car with an object in his hands. Deputy Cloud exited

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24-13567 Opinion of the Court 3

his car and stood by the driver door. He asked Payrow if he was

alright and told him to show his hands, which were in a bag he was

carrying. Payrow did not respond to Deputy Cloud’s commands

and continued to approach him. Payrow stopped in front of the car

and said he was FBI special investigations, and Deputy Cloud knew

that something was not right. He backed away from Payrow and

told him to move back and show his hands. When Payrow was an

arm’s length away, he lunged at Deputy Cloud with a knife-like

object, and Deputy Cloud believed Payrow was going to kill him.

He shot Payrow within seconds. A screwdriver was found on the

ground next to Deputy’ Cloud’s car. A partial DNA profile for the

screwdriver matched Payrow’s DNA profile.

Daniel Rojas also testified that he was outside a nearby

home during the event. Rojas saw Deputy Cloud pull up behind

Payrow and shine a spotlight on him. After Deputy Cloud got out

of his vehicle, he spoke to Payrow. Deputy Cloud told Payrow to

stop so he could talk to him. Payrow then “rushed” at Deputy

Cloud “[i]n an aggressive manner” such that it appeared he “was

going to tackle the officer.” Deputy Cloud fired his gun as Payrow

ran toward him. Rojas did not see anything in Payrow’s hands. Af-

ter he heard the shots, he ran inside.

Payrow testified in his own defense. He testified that Deputy

Cloud did not shoot him and that he was shot by an armed robber

at another location. He denied ever seeing Deputy Cloud before

trial. The jury acquitted Payrow.

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Payrow then filed a civil suit in state court. The defendants

removed the suit to the district court. Payrow’s amended com-

plaint asserted claims of excessive force and false arrest against

Deputy Cloud, 42 U.S.C. § 1983, and claims of battery, false arrest,

and false imprisonment against Sheriff Chronister under Florida

law.

Deputy Cloud and Sheriff Chronister moved for summary

judgment. They argued that Payrow’s claims were barred by judi-

cial estoppel because he had previously testified at his criminal trial

that he was shot by a different person. They further argued that if

Payrow’s mental health precluded a defense of judicial estoppel, his

testimony could not be relied upon because he was not competent

to testify and could not be believed. Deputy Cloud also argued the

claims against him were barred by qualified immunity. And Sheriff

Chronister argued that Payrow failed to establish his state-law

claims and that those claims were barred by sovereign immunity.

Payrow responded that judicial estoppel should not apply

because he could not have the intent to manipulate the court based

on his mental health issues. He also argued against the application

of qualified and sovereign immunity. Payrow did not rely on his

own deposition testimony in his responses, and instead relied on

Deputy Cloud’s and Rojas’s testimony. He submitted a psycholog-

ical assessment that he had schizophrenia and exhibited delusions.

While the motions were pending, Payrow was appointed a guard-

ian based on total incapacitation.

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The district court granted summary judgment. It ruled that

judicial estoppel barred Payrow’s complaint because he had taken

an inconsistent position during his criminal trial. It ruled that in the

absence of judicial estoppel, summary judgment was still appropri-

ate because Payrow waived any argument relying on his own dep-

osition testimony. It ruled that Deputy Cloud was entitled to qual-

ified immunity because his use of force was objectively reasonable

and he had probable cause to arrest Payrow. It ruled that Payrow

had not established state-law claims of excessive force and false ar-

rest for the same reasons.

II. STANDARDS OF REVIEW

“We review a district court’s grant of summary judgment de

novo, viewing all the evidence, and drawing all reasonable factual

inferences, in favor of the nonmoving party.” Richmond v. Badia, 47

F.4th 1172, 1179 (11th Cir. 2022) (citation and internal quotation

marks omitted). But we review a district court’s decision to apply

judicial estoppel for abuse of discretion. United States v. Munoz, 112

F.4th 923, 932 (11th Cir. 2024).

III. DISCUSSION

We divide our discussion into three parts. First, we explain

that Payrow’s claims are barred by judicial estoppel. Second, we

explain that absent judicial estoppel, Deputy Cloud would be enti-

tled to qualified immunity. Third, we explain that absent judicial

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estoppel, Payrow’s state-law claims against Sheriff Chronister

would fail as a matter of law.

A. The District Court Did Not Abuse Its Discretion by Applying Judicial

Estoppel.

“Judicial estoppel prevents the perversion of the judicial pro-

cess and protects its integrity by prohibiting parties from deliber-

ately changing positions according to the exigencies of the mo-

ment.” Id. at 934 (citation and internal quotation marks omitted,

alterations adopted). When the party seeking to apply judicial es-

toppel was not a party in the prior proceeding where the other

party took an inconsistent position, a two-part test applies. Slater v.

U.S. Steel Corp., 871 F.3d 1174, 1182 (11th Cir. 2017) (en banc). The

party must have taken “an inconsistent position under oath in a

separate proceeding” and the inconsistent positions must have

been “calculated to make a mockery of the judicial system.” Id. at

1181 (citation and internal quotation marks omitted).

Payrow clearly “took an inconsistent position under oath in

a separate proceeding.” Id. In support of his acquittal, Payrow tes-

tified that he did not have an encounter with Deputy Cloud and

that someone else shot him, and he denied ever seeing Deputy

Cloud before trial. He now asserts that Deputy Cloud used exces-

sive force when he shot him. The only question is whether Pay-

row’s “inconsistent positions were calculated to make a mockery

of the judicial system.” Id. (citation and internal quotation marks

omitted).

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The district court did not clearly err in finding Payrow had

the requisite intent. A finding that a party had the requisite intent

is a factual finding that we review for clear error. Robinson v. Tyson

Foods, Inc., 595 F.3d 1269, 1275 (11th Cir. 2010). “[T]he intent re-

quirement focuses on whether the party taking an inconsistent po-

sition would benefit from it, such as by deriving an unfair ad-

vantage or imposing an unfair detriment on the opposing party.”

Munoz, 112 F.4th at 935 (citation and internal quotation marks

omitted, alterations adopted). The party must have “actually in-

tended to manipulate the judicial system to his advantage.” Id. We

may infer intent from all the facts and circumstances and consider

the party’s degree of sophistication, any explanation for the omis-

sion, and whether he corrected any mistake. Slater, 871 F.3d at

1176–77. “Judicial estoppel should not be applied when the incon-

sistent positions were the result of inadvertence or mistake because

judicial estoppel looks towards cold manipulation and not an un-

thinking or confused blunder.” Id. at 1181 (citation and internal

quotation marks omitted, alteration adopted). Payrow had a mo-

tive to deny his encounter to obtain an acquittal for attempted

murder, and he had a motive to change his story to obtain a civil

damages award.

The record supports a finding that Payrow changed posi-

tions to “deriv[e] an unfair advantage.” Munoz, 112 F.4th at 935. He

failed to explain the divergence, admit that he had not told the

truth, or correct any mistake. Slater, 871 F.3d at 1176–77. When

asked about inconsistencies in his testimony, he stated he did not

remember his prior testimony and did not say it was a mistake. His

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change in position was “not an unthinking or confused blunder.”

Id. at 1181.

Payrow argues that his schizophrenia diagnosis makes it so

he could not have intended to manipulate the courts based on his

lack of sophistication. He argues that the district court did not suf-

ficiently consider records about his mental health. We disagree.

We cannot say the district court abused its discretion when

it invoked the flexible, equitable doctrine of judicial estoppel. Id. at

1187 (“Equity eschews mechanical rules and depends on flexibil-

ity.” (citation and internal quotation marks omitted)). The district

court considered his schizophrenia diagnosis and found that Pay-

row failed to explain how that diagnosis made his change in posi-

tion a mistake. The district court considered all the circumstances,

including his mental health, but decided the lack of explanation for

a divergence or effort to correct a mistake, along with the benefit

Payrow gained from his inconsistent positions, established an in-

tent to manipulate the system. We are not “left with a definite and

firm conviction that a mistake has been committed” in finding Pay-

row had the requisite intent. Robinson, 595 F.2d at 1275 (citation

and internal quotation marks omitted).

B. The District Court Did Not Err in Ruling Deputy Cloud Was Entitled

to Qualified Immunity.

Even if Payrow’s claims against Deputy Cloud were not

barred by judicial estoppel, he would still be entitled to qualified

immunity. As the district court found, Payrow did not argue in re-

sponse to the motions for summary judgment that his deposition

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testimony was competent or that it was not utterly discredited by

the record so that it created a genuine issue of material fact, which

was “likely a strategic decision to bolster his opposition to judicial

estoppel” based on his mental health issues. Instead, he relied on

Rojas’s and Deputy Cloud’s testimony. So, he has forfeited any ar-

gument that his testimony was competent and could create a gen-

uine issue of material fact. Transamerica Leasing, Inc. v. Inst. of Lon-

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

that arguments not made in a summary judgment response are for-

feited). Like the district court, we rely on Rojas and Deputy Cloud’s

version of events.

Deputy Cloud was entitled to qualified immunity from Pay-

row’s claims of violations of the Fourth Amendment. Qualified im-

munity protects a government official from suit in their individual

capacity unless their conduct violates “clearly established statutory

or constitutional rights of which a reasonable person would have

known.” Richmond, 47 F.4th at 1179 (citation and internal quotation

marks omitted). After an official establishes that he was acting

within his discretionary authority, which the parties do not dispute

here, the plaintiff bears the burden to establish that the official vio-

lated a clearly established constitutional right. Id.

Deputy Cloud was entitled to qualified immunity from the

claim that his warrantless arrest violated the Fourth Amendment.

Payrow argues that Deputy Cloud conducted an unlawful stop

when he initially encountered Payrow. But Deputy Cloud’s initial

contact did not constitute a seizure. Absent physical force, a seizure

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requires both a show of authority and “submission to [that] asser-

tion of authority.” California v. Hodari D., 499 U.S. 621, 626 (1991).

The testimony of both Deputy Cloud and Rojas established that

Payrow did not acquiesce to Deputy Cloud’s show of authority ask-

ing him to stop. Payrow instead charged at him. By the time of the

shooting and arrest, Deputy Cloud had probable cause. “Arguable

probable cause for any offense [bars a] false arrest claim on all

charges.” Hardigree v. Loftin, 992 F.3d 1216, 1230 (11th Cir. 2021).

Payrow charged at Deputy Cloud before being shot. That action

supplied probable cause to arrest Payrow for assault of a law en-

forcement officer. See Fla. Stat. § 784.07.

Deputy Cloud was also entitled to qualified immunity from

the claim that he used excessive force. In determining whether the

use of force was objectively reasonable under the Fourth Amend-

ment, we look at the totality of the circumstances and consider the

facts “from the perspective of a reasonable officer on the scene with

knowledge of the attendant circumstances and facts.” Powell v.

Snook, 25 F.4th 912, 921 (11th Cir. 2022) (citation and internal quo-

tation marks omitted). Officers are often required to make “split-

second judgments—in circumstances that are tense, uncertain, and

rapidly evolving—about the amount of force that is necessary in a

particular situation.” Singletary v. Vargas, 804 F.3d 1174, 1181 (11th

Cir. 2015) (citation and internal quotation marks omitted). An of-

ficer may use deadly force when he “has probable cause to believe

that the suspect poses a threat of serious physical harm,” “reasona-

bly believes that the use of deadly force was necessary to prevent

escape,” and “has given some warning about the possible use of

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deadly force, if feasible,” though a warning is not always required.

Powell, 25 F.4th at 922–23 (citation and internal quotation marks

omitted). “We have held that it is reasonable, and therefore consti-

tutionally permissible, for an officer to use deadly force when he

has probable cause to believe that his own life is in peril.” Singletary,

804 F.3d at 1181 (citation and internal quotation marks omitted).

Payrow argues there is a dispute of material fact about

whether he was armed. He relies on Rojas’s testimony that he did

not see Payrow with a weapon and an expert witness disclosure

calling into question the DNA testing on the screwdriver. But nei-

ther creates a genuine issue of material fact.

Rojas’s testimony was not inconsistent with Deputy Cloud’s

testimony. Although Rojas testified that he did not see Payrow

with a weapon, he also testified in his criminal deposition that he

did not see Deputy Cloud draw his revolver, and “if [Payrow] had

a little screwdriver on him or something, that was out of my sight,

you know, not that I was looking.” He was further away from Pay-

row, at night, and was not looking at either party’s weapon, so his

failure to see Payrow’s weapon does not create a dispute of mate-

rial fact. See Garczynski v. Bradshaw, 573 F.3d 1158, 1168 (11th Cir.

2009) (holding that an officer’s testimony that he did not see a gun

from far away with an obscured view did not create a genuine issue

of material fact when other officers at the scene stated the suspect

brandished a gun). And an expert witness’s testimony regarding the

reliability of DNA analysis does not create a genuine issue of mate-

rial fact as to whether Deputy Cloud saw Payrow with a weapon.

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Deputy Cloud’s and Rojas’s testimony established that Dep-

uty Cloud was alone, at night, facing a disturbed individual claim-

ing to be an FBI agent, who advanced even when Deputy Cloud

warned him to stop. Payrow then charged at him from close range

with a screwdriver. Deputy Cloud was forced to make a split-sec-

ond decision to protect himself from serious harm. Based on these

facts, we cannot say the use of deadly force was unreasonable.

C. The District Court Did Not Err in Ruling Payrow Failed to Establish

His State-Law Claims.

Payrow failed to establish his state-law claims of false arrest,

false imprisonment, and excessive force. Deputy Cloud’s actions

did not constitute a state-law battery for the same reasons his use

of force was not a constitutional violation. See Baxter v. Santiago-Mi-

randa, 121 F.4th 873, 891–92 (11th Cir. 2024) (“This Court has ap-

plied the same Fourth Amendment excessive force analysis to a bat-

tery claim against an officer under Florida law.”). And his claims of

false arrest and false imprisonment fail because, as explained above,

Deputy Cloud had probable cause to arrest Payrow. See Crocker v.

Beatty, 995 F.3d 1232, 1245 (11th Cir. 2021) (“Probable cause bars a

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

law.”).

We AFFIRM the summary judgment in favor of Sheriff

Chronister and Deputy Cloud.