Petition for Rehearing — Brenda Bellay, Petitioner v. Officer Tyler Shue, et al.

No. 23-40

Im the

Supreme Court of the Anited States

BRENDA BELLAY,

Petitioner,

Vv.

OFFICER TYLER SHUE, ET AL.,

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Eleventh Circuit

PETITION FOR REHEARING

Brenda Lee Bellay

1209 E. Cumberland Ave.

Unit 807

Tampa, FL 33602

(813) 503-2122

Brendlb@yahoo.com

October 26, 2023 Petitioner Pro Se

EEE

Becker Gallagher - Cincinnati,OH - Washington, D.C. « 800.890.5001

RECEIVED

OCT 30 2023

OFFICE OF THE CLERK

SUPREME COURT, U.S.

TABLE OF CONTENTS

TABLE OF AUTHORITIES wsisscssssssssssssvincesrsssscserasssesss ll

PETITION FOR REHEARING ..........ccccceeeseeeeseeeeeeeeees 1

COMPELLING REASON TO GRANT THIS

PETITION ........ ccsssvssssssvereavesvesensronssesausctccweanomaacorvernacane 1

SUMMARY ......eceeeceeeseesseesseesesesceesceesesecceneeeeesssenssaeees 1

ARGUMENT sivssscsvesenanswasscosrasresrcenvecssacucscessosreiaasitanuaas 2

CONCLUSION... eceeccecescceeeeeneceeneeeseeeeeeseeeeneteeneees 12

RULE 44 (2) CERTIFICATE............cccccceecceeeseeeseeeeeee 13

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TABLE OF AUTHORITIES

Cases:

Flury v. Daimler Chrysler Corp.,

427 F.3d 939 (11th Cir. 2005) ...csccccscccsecsseseseeeeseeen 11

Ontha v. Delta Air Lines, Inc.,

No. 21-13532, 2022 WL 580933 (11th Cir. Feb. 25,

PAV) eee ee ee ee ee ee 5

1

PETITION FOR REHEARING

COMPELLING REASON TO GRANT THIS

REHEARING

The most severe judgment of dismissal with

prejudice and sanctions based solely on an expert

witness affidavit that was hired by the Defendant.

Judgment should be based on precedent, truth finding,

merits, and facts of the case.

Brenda Bellay respectfully petitions this court

for a request of rehearing on denied Writ of Certiorari

to review the affirmation of judgment by the United

States Court of Appeals for the Eleventh Circuit.

On direct appeal to the United States Court of

Appeals for the Eleventh Circuit, the Petitioner argues

that there are major errors the lower Court

overlooked; and rendering an order of dismissal on

nonfactual; erroneous accusations of perjury and

imposing sanctions on the Petitioner- Appellant.

The case was dismissed solely on a falsified

affidavit, by the Defendants expert witness, aside from

the factual evidence and depositions.

SUMMARY

The Eleventh Court of Appeals erred affirming

the most severe judgement of dismissal with prejudice

and sanctions instead of remanding due to this

Circuit’s precedent case, and precedent cases in other

Circuit Courts where cases were not dismissed, as

2

dismissal was too harsh of a penalty. The Eleventh

Court of Appeals agreed that the argument was

applicable. Then also mentioned the argument was in

the initial brief and detailed in the reply brief, and that

was too late in the reply brief. Then contradicted that

stating the argument was completely abandoned.

The Lower Court dismissed the Appellant’s case

with prejudice and sanctions, accusing the Petitioner

of perjury based solely on the affidavit of an expert

witness that was hired by the Defendants instead of

the relying on the facts that were presented to the

Courts as evidence and depositions that would have

clearly discredited the Defendants expert witness’s

frivolous affidavit.

The Petitioner requests the Supreme Court to

grant this rehearing and order the case back to the

Eleventh District Court of Appeals to be remanded.

The facts of the case show no evidence of spoliation,

bad faith, or perjury on the Petitioner’s part. Tampa

Police Officer Tyler Shue intentionally broke the

Petitioner’s phone while she was videoing as a

bystander, not interfering or intervening. The Officer

used excessive force and falsely arrested the Plaintiff

without probable cause.

ARGUMENT

The Petitioner’s Civil Rights were violated by

the Tampa Police Department, by excessive force and

false arrest. On September 13, 2015, the Plaintiff was

at a food truck ordering water, with a neighbor she had

recently met, Paige Davis, who saw the food truck as

3

both were walking. Paige Davis stated that she needed

water, and then took a rest, due to a medical issue. As

the Petitioner ordered water she heard screaming, and

saw it was Paige Davis.

This prompted the Petitioner to retrieve her

phone to try to take pictures, then eventually switched

the phone to video. Paige Davis was in a confrontation

with a security guard, which resulted in the Tampa

Police being called to the scene. Petitioner was

unaware as to why Paige Davis was screaming or for

the reason of the confrontation. Tampa Police

Department (TPD) officer, Mark Barry, asked the

suspect Paige Davis for her ID several times, but she

was hysterical and refused to comply.

Officer Mark Barry asked for the Petitioner’s

ID; The Petitioner complied, stating, “You got it’, at

the same time the food truck vendor was returning the

Petitioner’s credit card for the water purchase. Paige

Davis then hit Officer Mark Barry with her hand and

cursed at him. The Officer began to handcuff Paige

Davis, with assistance from another officer Tyler

Shue.

After Paige was handcuffed, Officer Tyler Shue

began yelling to the Petitioner to back up; Petitioner

complied and backed up, along with the security

guard. Petitioner advised that she was only videoing,

and not doing anything illegal. Officer Tyler Shue

then approached the Petitioner and slammed her onto

the patrol car, causing injury to the Petitioner. Tyler

Shue said, “Drop your phone or I’m going to break it”.

He then hit the Petitioner, knocked the phone out of

4

her hand breaking the device, then knocked Petitioner

down, and placed her in handcuffs.

The Petitioner was kicked in the head while

handcuffed, then pulled off the ground by the

handcuffs causing severe pain to shoulders. Officer

Tyler Shue walked Petitioner to the police car. The

Petitioner said “My name is Brenda Bellay. Please

check the Tampa Police history of falsely arresting

me.” Tyler Shue replied; “I don’t care who you are!”

Tyler Shue then transported the Petitioner to jail.

Officer Tyler Shue referred to Petitioner’s 2005

Tampa Police false arrest and successful civil suit

throughout his documentation. The Judge stated the

Petitioner added to the disturbance by not backing up

as instructed and stated this video actually favored

the Defendant. But that is clearly false as the officers

only asked the Petitioner to back up after Paige Davis

was handcuffed, not during. These facts are clearly

stated in the Petitioner’s deposition on page 61. In the

deposition of Officer Mark Barry and the security

guard, the opposite is clearly stated, in fact they stated

they did not recall the Petitioner doing or saying

anything wrong.

Petitioner was awarded Summary Judgement.

Petitioner was unaware that the police officers were

not wearing body cameras until February 19, 2016.

The Defendant's expert witness, Dwayne Denny,

stated in his affidavit the Petitioner had a computer

back up in 2014; in which was a year prior to the

incident. Asserting the videos are from October 2015,

due to the pop-up interrupting video from duplicates,

5

“! Not Enough Storage. The iPhone cannot be backed

up because there is not enough iCloud storage

available. You can manage your storage in Settings’.

The pop up continued, as a screenshot of it October 24,

2015, at 8:44; had been taken.

The Defendant’s attorneys stated it wasn’t

Officer Mark Barry who asked the Petitioner for ID.

Then changed that theory, stating that the Petitioner

should have known she was being trespassed when

Officer Mark Barry asked for ID. The Police officers’

depositions and the other depositions are in

agreement that there was no trespass against the

Petitioner.

During the depositions, the Petitioner was

instructed to write down any questions or comments

for her lawyer. After the Petitioner’s lawyer played the

pictures and videos, Petitioner acted in good faith and

wrote on an index card, “Where is the video of Paige

Davis being handcuffed?” The Petitioner’s lawyer

shook his head and rendered no reply. The Petitioner

was under the impression that the lawyer would

provide a rebuttal. He later advised the Petitioner that

was because he didn’t know what she was talking

about. Petitioner did not act in bad faith. As per the

Eleventh Circuit Court of Appeals precedent case that

describes bad faith, Ontha v. Delta Air Lines, Inc., No.

21-13532, 2022 WL 580933 (11th Cir. Feb. 25, 2022),

dismissal with prejudice “is an extreme sanction that

may be properly imposed only when (1) a party

engages in a clear pattern of delay or willful contempt

(contumacious conduct); and (2) the district court

specifically finds that lesser sanctions would not

6

suffice.” This sanction “is thought to be more

appropriate in a case where a party, as distinct from

counsel, is culpable.”.

On July 10, 2021, before the jury trial scheduled

for July 12, 2021. The Petitioner went to her lawyer’s

office and noticed they were missing a video of Paige

Davis being handcuffed, and again in good faith told

them they were missing one. The Plaintiff found one

of the duplicates in her iPhone and emailed it to them

while in their office. The lawyer emailed it to the

Defendant’s attorneys. The Defendant’s attorneys told

the judge it was suspicious for spoliation due to the

word trim. The judge called for a mistrial.

An evidentiary hearing was scheduled. The six

second video did not contradict the depositions,

including that of the other police officer and security

guard. The same video was sent to another attorney

the same year, 2016, who handled a previous false

arrest case against the Tampa Police Department.

Petitioner was not aware that the current lawyer did

not have the video, and the Petitioner spoke up when

she realized it. The duplicates did not say trim. Even

though there were deleted duplicates from the photo

album to free up storage, it is in a text message to the

lawyer and is still on Petitioner’s phone. The

Defendant's expert witness, Dwayne Denny, failed to

disclose those facts.

7

The Judge referred to the Defendant’s expert

witness Dwayne Denny’s affidavit that the Petitioner

had an iPhone XS wiped clean July of 2021, the month

of the jury trial. Petitioner has proof that the iPhone

was purchased on November 12, 2018; and returned it

14 days later on November 26, 2018, to Apple, Inc.

(Apple) and exchanged it for another iPhone XS with

the same phone number, which is the phone the

Petitioner currently has. The Petitioner has not been

in possession of that phone since the return on

November 26, 2018. Having the receipt with both

serial numbers that shows the phone was returned

and changed for another one, and this receipt was

presented as evidence. Apple did a resctting to their

phone July of 2021.

The defendant's expert witness, Dwayne

Denny, told the Court that the Plaintiff didn’t even

bring her charger when she took both her phone and

compuler to him. The devices were 100% fully

charged. He had not asked the Petitioner to bring the

charger, only phone and computer. The Petitioner

offered to get her charger and Dwayne Denny said no,

that there was not much on there anyways and

shouldn't take long.

Petitioner’s lawyer subpoenaed the Apple

recorded phone calls. Apple confirmed the video was

not edited and the Petitioner did not have the

technology to edit. Apple stated even if edited, it

wouldn’t say “trim”. There were no third-party video

editing apps at that time or in the history of deleted

apps. In the evidentiary hearing, Petitioner told the

Judge that Apple stated if a video is edited, it would

8

show “revert” option to get the original back. He tested

this and stated his phone did not say “revert”.

The Judge allowed Petitioner to retrieve her

phone so she could show communication from Apple

that was sent to the lawyer. “Based on the situation

presented, there was not storage located on the device

in order to record video/photo. Word trim would come

on screen in order to reduce video length to maintain

adequate storage, does not mean video was edited”.

During the evidentiary hearing on February 25,

2022, the Petitioner asked the Court what she was

supposed to do when a police officer asked for ID and

was compliant. Then the other police officer told her to

back up and the Petitioner again complied. The court

was silent. On March 20, 2020, Petitioner called to try

and get the iPhone 5S back from five years ago, which

is the same phone that was used to video; shown on

Page 129 of Dwayne Denny’s affidavit. There was no

intent on the Petitioner’s part to destroy the evidence

on the phone. These events happened before the

alleged spoliation suspicion. The Petitioner called

Apple to request if there was any GPS tracking that

would show that she was in jail. This is relevant

because Petitioner called Apple attempting to get the

iPhone 5S back, not destroy evidence.

Petitioner called Apple to see if there was GPS

tracking that would show she was in jail, not at the

scene in Hyde Park with a TARP restraint and Tampa

Fire Rescue (TFR) report documenting a blood glucose

lab result and vital signs falsely in the Petitioner’s

name. Also, after cross examination during the

9

evidentiary hearing, the Judge told the Defendant’s

expert witness he still has not proven anything.

Petitioner did not give consent to the police

officers to use her ID on the suspect, Paige Davis. Per

Paige Davis’ deposition, she stated that during the

confrontation with the police officer, she “shut down”

due to a medical condition. She described being

restrained in a prone position, handcuffed, and feet in

the air. The TFR report states she was “A&O x 2”

(A&O means alert and oriented. A&O x 3 is normal -

Time- what year is it? Place- What city are you in?

Person- What. is your name?). She was A&O to 2 of

these. The TFR report in Hyde Park shows the call

ended at 0321. Officer Mark Barry documented that

he transported the Petitioner to jail and signed the

transport form with jail employee Nikibi Dempsey at

0321.The Petitioner cannot be in two places at the

same time.

Officer Tyler Shue transported the Petitioner to

jail, not Officer Mark Barry. Petitioner’s lawyer

subpoenaed the video of petitioner being transported

to jail but told they no longer had it. Paige Davis stated

she remembered one other police officer arrived at the

scene, a female. She asked the male, Officer Mark

Barry, where the Petitioner was, and he told her the

Petitioner went to jail. He could not have transported

the Petitioner to jail if he had told Paige Davis the

Petitioner went to jail.

Paige Davis hit police officer Mark Barry, but

he didn’t charge her for felony battery on a law

enforcement officer, and ultimately let her go home.

10

But the Petitioner went to jail. Officer Tyler Shue

documented the TARP and TFR as it these happened

to the Petitioner, but he was no longer at the scene to

witness these events because he transported the

Petitioner to jail. Officer Tyler Shue mentioned the

Petitioners previous false arrest and successful civil

suit throughout his documentation. Of note, during

the progression of the case, Petitioner received an

update that Paige Davis went into Hospice and passed

March 28, 2022.

The Judge stated the Petitioner said the iPhone

5S was stolen based on the defendant’s expert witness,

and accused the Petitioner of perjury. Dwayne Denny

also erred, stating that on his affidavit from the

Petitioner’s deposition from January 2020, but the

deposition was on August 3, 2021, which shows

inconsistency in his testimony. The Petitioner never

said that. The Petitioner did not commit perjury.

Petitioner stated there was a phone stolen, but a

phone before the 5S, either the 4 or the 5, which is in

the deposition. There is a police report that the iPhone

5 was stolen in 2014 which proves Petitioner did not

commit perjury.

Petitioner had that iPhone 5S for years before

it became obsolete, and nobody subpoenaed it. Dwayne

Denny’s affidavit includes accusations such as, “skills

of an expert to execute efforts to manipulate evidence”.

And “Bellay removed backups from her computer with

assistance of Apple Genius team.”

Apple created an inquiry ticket, and it was

closed after 5 hours and 47 minutes, but did not

11

provide any information, and no proof/evidence of

spoliation. Dwayne Denny has been complained about

on the Better Business Bureau (BBB), of which he is

not affiliated. He falsely accused Petitioner of

“doctoring” the BBB report in the evidentiary hearing.

After cross- examination of the Defendants expert

witness, Dwayne Denny, the Judge told him he still

had not proven anything.

This judgement of dismissal with prejudice and

sanctions does not match precedent, laws, facts,

merits, or precedent cases in other Circuits causing a

Circuit split. The Eleventh Circuit Court of Appeals

precedent case, Flury v. Daimler Chrysler Corp., 427

F.3d 939 (11th Cir. 2005), the factors that courts may

consider in determining whether sanctions for

spoliation of evidence are warranted, include:

“(1) whether the Defendant was prejudiced as a result

of the destruction of evidence; (2) whether the

prejudice could he cured; (3) the practical importance

of the evidence; [and] (4) whether the plaintiff acted in

good or bad faith.”

This is detrimental economically, financially,

and emotionally. The sanctions of $6000 to the

Defendant’s expert witness and their lawyers’ fees are

exorbitant, even though there was no evidence of

spoliation, bad faith, or perjury from the Petitioner.

This is detrimental to the Petitioner’s RN career, in

addition to the trauma of arrest, jail, and the expense

of defending the matter. The Petitioner’s

Constitutional rights were violated by the Tampa

Police. This dismissal deprives the Petitioner of the

Constitutional right to a trial by jury.

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CONCLUSION

There were major errors in dismissing

Petitioner’s case for any reason. The Eleventh Circuit

Court of Appeals erred in affirming the most severe

judgement of dismissal with prejudice and sanctions.

This most severe judgement of dismissal with

prejudice and sanctions should not be based solely on

the affidavit from the expert witness hired by the

Defendant, but based on precedent. Truth finding

after cross-examination of the Defendants expert

witness, together with the other evidence in the case,

should be used to determine the judgement.

Petitioner respectfully requests the Supreme

Court to grant a rehearing so that this case can be

reviewed and sent back to the Eleventh Circuit Court

of Appeals to be remanded.

Respectfully Submitted,

Brenda Lee Bellay

1209 E. Cumberland Ave. Unit 807

Tampa, FL 33602

(813)503-2122

Brendlb@yahoo.com

Petitioner Pro Se

13

RULE 44(2) CERTIFICATE

I hereby certify that this petition for rehearing

is present in good faith and not for delay, and that it

is restricted to the grounds specified in United States

Supreme Court Rule 44.2.

Brenda Lee Bellay

1209 E. Cumberland Ave. Unit 807

Tampa, FL 33602

(813)503-2122

Brendlb@yahoo.com

Petitioner Pro Se

F) B E C KE R GAL LAG H E R Supreme Court of the United States

Briefs and Records United States Courts of Appeals

CERTIFICATE OF COMPLIANCE

No. 23-40

BRENDA BELLAY,

Petitioner,

v.

OFFICER TYLER SHUE, INDIVIDUALLY,

AND CITY OF TAMPA,

Respondents.

As required by Supreme Court Rule 33.1(h), I

certify that the Petition for Rehearing contains 2,836

words, excluding the parts of the Petition that are

exempted by Supreme Court Rule 33.1(d).

BECKER GALLAGHER LEGAL PUBLISHING INCORPORATED 8790 Governor’s Hill Drive Franklin Square

(800) 890.5001 Suite 102 1300 | Street, NW, Suite 400E

www.beckergallagher.com Cincinnati, Ohio 45249 Washington, DC 20005

State of Ohio

County of Hamilton

I declare under penalty of perjury that the

foregoing is true and correct.

Executed on October 26, 2023.

Ye WML VW Moor

Donna J. Moott

Becker Gallagher Legal Publishing, Inc.

8790 Governor's Hill Drive, Suite 102

Cincinnati, OH 45249

(800) 890-5001

Sworn to and subscribed before me by said Affiant

on the date designated below.

Date: VAG hate. JG, Ocea3

BbA4 Aitceete

Notary Public

[seal]

My Commission Expires

February 14, 2028

| (fF) B E Cc KE R GAL LAG H E R Supreme Court of the United States

United States Courts of Appeals

Briefs and Records

CERTIFICATE OF SERVICE

I, Donna J. Moore, hereby certify that 40 copies of

the foregoing Petition for Rehearing in 23-40, Brenda

Bellay v. Officer Tyler Shue, individually, and City of

Tampa, were sent via Next Day Service to the U.S.

Supreme Court, and 3 copies were sent via Next Day

Service and e-mail to the following parties listed

below, this 26th day of October, 2023:

Andrew I. Dayes

Dayes Law Firm, PLLC

727 2nd Street South

Safety Harbor, FL 34695

(727) 240-1332

aid@dayeslaw.com

Ursula Danese Richardson

Office of the Tampa City Attorney

315 E. Kennedy Blvd., Floor 5

Tampa, FL 33602

(813) 274-8795

ursula.richardson@ci.tampa.fl.us

Counsel for Respondents

Brenda Lee Bellay

1209 E. Cumberland Ave.

Unit 807

Tampa, FL 33602

(813) 503-2122

Brendlb@yahoo.com

Petitioner Pro Se

BECKER GALLAGHER LEGAL PUBLISHING INCORPORATED 8790 Governor's Hill Drive Franklin Square

(800) 890.5001 Suite 102 1300 | Street, NW, Suite 400E

www.beckergallagher.com Cincinnati, Ohio 45249 Washington, DC 20005

All parties required to be served have been served.

State of Ohio

County of Hamilton

I further declare under penalty of perjury that the

foregoing is true and correct. This Certificate is

executed on October 26, 2023.

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Donna J. Moore

Becker Gallagher Legal Publishing, Inc.

8790 Governor’s Hill Drive

Suite 102

Cincinnati, OH 45249

(800) 890-5001

Subscribed and sworn to before me by the said

Affiant on the date below designated.

Date: ctohee DE, 0235

C She 1A} Aucey

Notary Public

[seal]

My Commission Expires

February 14, 2028

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